Re Harper v National Coal Board (Intended Action)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,THE MASTER OF THE ROLLS |
| Judgment Date | 20 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1220-6 |
| Date | 20 December 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1220-6
The Master of the Rolls (Lord Denning)(and
Lord Justice Stephenson
In The Supreme Court of Judicature
Court of Appeal
Revised
Mr. C. McCULLOUGH. Q. C., and Mr. I. McLAREN (instructed by Messrs. Sharps Pritchard & Co., agents for Messrs, B. Mather & Co. of Chesterfield) appeared on behalf of the five intended plaintiffs, Appellants.
There was no other appearance.
in the years before 1963 miners were often found to be suffering from pneumoconosis. This was due to the inhailing of dust. They had to give up work. They received disablement benefits. None of them thought they had any cause of action in the Courts against the Coal Board. Some years later it appeared that the Coal Board might have been guilty of negligence or breach of statutory duty. But then it was far too late for the men to make a claim. They were barred by the Statute of limitations. It was so held by the House of Lords in Cartledge v. Jopling 1963 A. C. 755. The Limitation Act 1963 was passed to remedy that injustice. It provided, in effect that if a man brought an action within 12 months of getting to know (actually or constructively) that he had a worthwhile cause of action, then his action would not be barred. He had to bring his action within 12 months of getting to know. The 12 months has been extended recently by the Law Reform (miscellaneous Provisions) Act 1971 to three years; but the principles remain just the same as before.
We have before us applications on behalf of five coal miners. They have applied exparte for leave to bring an action so as to get the benefit of the Limitation Act 1963. In order to get leave under section 2(2) of the Act, the man has to show (a) a prima facie case that he would have a cause of action for negligence or breach of duty, and also (b) satisfy the requirement that he did not know that he had a worthwhile cause of action until within the last three years. The five cases are much alike. I will take as typical Mr. Brownlow's case. He had worked underground for 34 years. On 7th February 1968 he was certified as suffering from pneumoconosis. He said: "I was not aware that I was suffering from it until on or about that date. At all material times I was a bomber of the National Union of Mineworkers. However I was not aware that mycontracting pneumoconosis gave me any potential cause of action against the defendants and I thought that the only remedy was to claim Industrial disablement benefit, and this so far as I was aware at that time was all that the other miners, suffering from pneumoconosis were claiming…. I told the branch secretary of the National Union of Mineworkers of this at the time. I did not think that there was any question of suing for damages for pneumoconosis as I had never heard of anyone doing this. The branch secretary did not suggest that I could. Like any other trade union member I relied upon him to tell me of my rights…. It was not until June 1971 I heard the result in the case of Pickles v. National Coal Board where I verily believe that the plaintiff recovered damages against the defendants for pneumoconosis. Thereafter I sought advice concerning the likelihood of my having a similar cause of action. I was referred to the Union solicitors whom I saw on the 20th day of August 1971 and who then advised me that I should seek leave to bring this intended action, and this was the first time that I knew or realised that I had a worthwhile action against the defendants."
So Mr. Brownlow says he did not get to know until 20th August 1971. He made his application for leave in September 1973. That is within three years of getting to know. Mr. Brownlow mentions the case of Pickles v. National Coal Board. In 1968 this Court gave leave to Pickles to bring an action against the National Coal Board. It is reported in 1968 1 W. L. B. 997. No doubt Pickles brought his action. It was not settled until 1971 when he received compensation. The result was published in the middle of 1971 in some newspapers. That is how these five men got to know that they might have a claim.
The application of these five men for leave was made to Mr. Justice Thesiger when he was on circuit at Nottingham. He dealtwith then on the affidavits without any oral arguments. He refused to grant leave to any of them. He made a note that he did so because of the speeches in the House of Lords in Smith (and Dodd) v. Central Asbestes Co. (1972) 1 W. L. B. 333, which case I decided at first instance on 8th July 1970. The speech of Lord Pearson indicates that he decided the case in favour of the respondents on the facts. He agreed with Lord Simon of Glaisdale and Lord Saloon on the law".
The root issue is on this point of law: What is the knowledge which bars a man from getting leave? Is it his knowledge of the facts? or his knowledge of the law? According to one point of view, time begins to run against a man as soon as he acquires knowledge of all the material facts, even though he does not know the law and does not know that he has a worthwhile cause of action. According to the other point of view, time does not begin to run against hit) until he acquires knowledge, not only of the material facts, but also that he has a worthwhile cause of action.
Prior to the decision of the House of Lords, this Court held in a series of cases that time did not run against a man until he knew that be had a worthwhile cause of action. Those were such cases as: In re Pickles v. National Coal Board (intended action,) (1968) 1 W. L. R. 997. Skingsley v. Cape Asbestos Co. Ltd. (1968) 2 Lloyds Rep. 201, C. A.; Newton v. Caramel Laird & Co. (Shipbuilders and Engineers) Ltd. (1969) 1 W. L. B. 415, C. A. Drinkwater v. Joseph Lucas (Electrical) Ltd. (1970) 3 All E. R. 769. C. A.; Smith v. Central Asbestos (1972) 1 Q. B. 244 and Knipe v. British Railways Board (1972) 1 Q. B. 361, C. A. None of those cases were overruled by the House of Lords in Smith v. Central Asbestos Co. (1973) A. C. 518. But the speeches in the House give rise to much uncertainty as to the correct legal position.
Dodd suffered from asbestosis due to his work. He knew it when he had to give up work in 1965 because of it. But he did act know that he had any cause of action for damages until about 1967. He then learned that a fellow workman was suing the employers for damages. He went to a solicitor and was told that he (Dodd) might have a cause of action. He get leave in October 1967 (within 12 months of getting to know he had a cause of action, but more than 12 months of getting to know the facts). This Court held that he was within time, see 1972 1 Q. B. at page 258. The House of Lords affirmed the decision, but only by a majority of three to two. The speeches show a perplexing difference of view.
Two of the majority accepted the view of the Court of Appeal that time did not run against a man until he knew that he had a worthwhile cause of action. These were Lord Held and Lord Morris of Borth-y-Gest. Their view was well expressed by Lord Morris of Borth-y-Gest at pages 539 in 1973 A. C. between E and F:
"A typical case will be that of someone who knows or comes to know that he has suffered injuries in such a form as pneumoconosis or asbestosis and who knows or comes to know that he has suffered those injuries while at work and because of the nature of his work but has no idea that he can in any way blame his employer or sue his employer. He would say: 'I did not know that I could put my injures down to his...
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