Patricia Melanie Nicholas (Executrix of The Estate of Doris Timbrell, Deceased) v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Burrell |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2351 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X01853 |
| Date | 31 July 2013 |
[2013] EWHC 2351 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Burrell QC,
Sitting as a High Court Judge
Case No: HQ12X01853
Mr Simon Kilvington (instructed by John Pickering and Partners LLP) for the Claimant
Mr Adam Farrer (instructed by Treasurer Solicitor) for the Defendant
Hearing dates: 10 th July 2013
His Honour Judge Burrell QC sitting as a High Court Judge:
Introduction
The claimant is the daughter and executrix of the estate of Doris Timbrell, the deceased. The deceased died on 23.11.08. She was then aged 86 years old. During the war years between 1941 and 1943, she had worked for Baxters of Blackburn in assembling gas masks and fitting filters into the masks. As a result, she was exposed to asbestos. On 3 rd June 2004, she saw her GP with a chest infection. On 9 th June 2004, she was noted to be breathless. She was referred to the Royal Preston hospital for admission. An X-ray revealed multiple calcified pleural plaques due to asbestos exposure. A CT scan subsequently confirmed this. She was discharged on 14 th June 2004 on Prednisolone, a corticosteroid. In August 2004, lung function tests showed severe impairment of the gas transfer factor. On 11 th November 2004 she was reviewed and noted to be struggling on stairs through breathlessness. In March 2005 she made a claim for industrial disablement benefit and was examined by the Medical Board on 10.6.05. In April 2005, a chest X-ray showed bilateral calcified pleural plaques and pulmonary fibrosis over her lungs. Her symptoms remained relatively stable for a while but by 2006, her breathlessness was deteriorating and eventually at times, she had to use an oxygen cylinder. During the last few years of her life, the claimant, her daughter, shopped, cooked and cleaned for her. In September 2008, she was showing symptoms of a cancer and losing weight. By October, she had lost 2 stone in weight. Oesophageal cancer was eventually diagnosed. This was unrelated to the asbestosis and she died from the cancer (not the asbestosis) as referred to on 23.11.08.
It is agreed that she was advised by a doctor that she could make a claim in relation to the asbestosis on or about 26.8.04 (see comment from Dr Fairburn, as referred to in the report from Dr Rudd, consultant chest physician at Tab 2 TB) and that is the agreed date of knowledge for limitation purposes. Thus the claim was statute barred 3 years later on 26.8.07. This is 1 year and 3 months before her death. On 26.8.04, her daughter, the claimant was with her when she received this advice. After her death, the claimant took legal advice (in February 2009) and after the inquest in March 2009 which held that death was due to industrial disease (in fact, it is agreed that in accordance with Dr Rudd's opinion, death was due to the oesophageal cancer), the claim was first notified to the defendant on 4.6.09. Solicitors for the claimant began collecting evidence and instructing an expert. Proceedings began (claim form issued) on 14.5.12. The claim is thus statute barred and the claimant seeks relief pursuant to S33 of the Limitation Act 1980 to override the limitation period. Although the defendant can point to no prejudice as a result of the delay, it is argued that it would inequitable to apply the dispensations provisions of the Act, bearing in mind all the circumstances of the case.
Delay
As the deceased died after expiry of the limitation period the special time limit for actions in respect of personal injury (accruing for the benefit of the estate under Law Reform (Miscellaneous Provisions) Act 1934) referred to in S11 of the Limitation Act 1980 does not apply. This would have been 3 years from the date of death. There is delay therefore from date of expiry of limitation period on 26.8.07 (3 years from agreed date of deceased's knowledge) and 14.5.12 when proceedings were issued. A moratorium period was agreed between solicitors for both sides from 23.11.11 to 23.5.12. Accordingly the delay from expiry of limitation period to first day of moratorium is a period of 4 years 3 months approximately i.e. 26.8.07 to 23.11.11. Part of the overall delay is due to the deceased taking no action from her date of knowledge on 27.8.04 and part is due to the claimant failing to commence proceedings after date of death on 23.11.09. The overall period of delay from date of knowledge to date proceedings commenced less moratorium period is 7 years 3 months approximately (moratorium period being approximately 6 mths to commencement of proceedings).
Prejudice
As referred to, the defendant can point to no prejudice as a result of the delay or any part of the delay whatsoever, save to have lost the benefit of the limitation defence if the application for dispensation is successful. Subject to the limitation defence, liability and causation are admitted.
Section 33 of the 1980 Act
S33(1) of the Act gives the court a discretion to override the normal time limits in circumstances where it appears to the court that it would be equitable to allow the action to proceed, having regard to the degree to which (a) the provisions of S11 or 11A or 12 of the Act prejudice the claimant or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; S33(3) requires the court to take into account all the circumstances of the case when exercising the general discretion in deciding whether it would be equitable to allow the action to proceed including in particular:
i) the length and reasons for the delay on the part of the deceased and claimant;
ii) the effect of the delay on the cogency of the evidence;
iii) the conduct of the defendant after the cause of action arose;
iv) the duration of any disability of the claimant arising after the accrual of the cause of action;
v) the extent to which the claimant acted promptly and reasonably once he knew the breach of the defendant causing the injury might be capable at that time of giving rise to an action for damages;
vi) the diligence on the part of the claimant in obtaining expert advice;
In addition to S33(1)(a) and (b) the three relevant criteria in S33(3) (in addition to the overall discretion) relate to (a), (b) and (e). In relation to (e) as referred to, the defendant can point to no prejudice caused by the delay affecting the cogency of the evidence. Liability and causation are agreed, subject to the limitation defence. In relation to (a) Mrs Nicholas, the claimant states in her witness statement that her mother did not feel up to bringing a claim. The claimant's son persuaded her to put in a claim for industrial injuries disablement benefit. The son worked for the DHSS and knew about the procedure. He put the claim in on her behalf. The deceased did not have to do much (save no doubt to sign forms) and no lawyers were involved. As to the prospect of suing the defendant, Mrs Nicholls said in cross examination that her mother (who was a reserved timid lady) wanted to pursue a case as she felt hard done by the defendant in causing her to contract the illness but felt she was too ill to actually instruct solicitors, provide statements and see medical experts. Mrs Nicholas said the deceased was becoming increasingly breathless and would become distressed (and her face would change colour) if the possibility of pursuing a claim was mentioned. She felt it was unfair to push her given the extent of her symptoms and was obliged to leave it at that. Her main concern was the quality of her mother's life. She said she did not take legal advice at that stage as she was too involved in the care of her mother, which was "all consuming". She referred to her mother effectively feeling bitter that she had done her bit for the war effort and this (i.e. the onset of asbestos) was how she was rewarded. Despite taking the view that the defendant should be pursued in a court action, she said her mother was simply not up to it (her mother said so herself) and this was entirely due to the asbestos symptoms themselves which left her weak through increasing breathlessness and significant physical restriction. She said her mother became upset when it (a possible claim) was mentioned and was distressed at the thought of what it would entail. It is agreed this part of the criteria involves a subjective test. ( Coad v Cornwall [1997] 1 WLR 189). This is why the deceased did not act promptly or seek expert advice. (S33 (3) (e) and S33 (3) (f)).
As to the claimant's own delay, as referred to, after the death of her mother, she took legal advice and the claim was pursued with the letter of claim going out on 4.6.09. The claim commenced on 14.5.12. Over that period solicitors for the claimant were dealing with the matter. They were no doubt collecting the evidence upon which this type of claim depends.
Findings
It is the effect of the delay on the defendant's ability to resist the claim on the merits which is of paramount importance. ( ...
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