Smith v Central Asbestos Company Ltd

JurisdictionUK Non-devolved
CourtHouse of Lords
JudgeLord Morris of Borth-y-Gest,Lord Reid,Lord Pearson,Lord Simon
Judgment Date28 June 1972
Judgment citation (vLex)[1972] UKHL J0628-1
Date28 June 1972

[1972] UKHL J0628-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Pearson

Lord Simon of Glaidsdale

Lord Salmon

Central Asbestos Company Limited
and
Dodd

Upon Report from the Appellate Committee, to whom was referred the Cause Central Asbestos Company Limited against Dodd, that the Committee had heard Counsel as well on Monday the 17th, as on Tuesday the 18th, Wednesday the 19th and Thursday the 20th, days of April last, upon the Petition and Appeal of Central Asbestos Company Limited, of Central House, Thomas Road, London, E.14, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of May 1971, so far as regards the words "this appeal be dismissed" might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Walter Dodd, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Clause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 26th day of May 1971 in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,

1

For many years the Appellants carried on an asbestos factory in which some safety regulations were disregarded. On one occasion they were convicted of a breach of regulations but otherwise nothing much seems to have been done to put things right. The Respondent began work there in 1952. He often inhaled asbestos dust. He was medically examined from time to time. In January 1964 he was told that he was suffering from asbestosis. He felt no ill effects and carried on his work until September 1965 when on medical advice he left this work for employment by the Home Office. In 1964 he claimed disability benefit and received a 10 per cent. award. About that time he discussed his position with the works manager, who had also contracted the disease. He was told that if he received disability benefit he could not also claim damages from his employers. So he took no action, and it seems that the works manager also made no claim. In 1967 when he was beginning to suffer considerably he met a fellow employee who told him that he was making a claim against the Appellants. So he consulted a solicitor and in October 1967 he took action against the Appellants.

2

The Appellants plead that this action is barred by the Limitation Act 1963. Before coming to examine the terms I must recall the circumstances in which it was passed. Under the previous law time ran from the date when the damage was suffered. In Cartledge v. Jopling [1963] A.C. 758 the appellant workmen had contracted pneumoconiosis by inhaling noxious dust before 1950. In this disease, as in asbestosis, the sufferer's lungs may have been damaged many years before any symptoms develop or even many years before any x-ray or other examination can disclose that there is anything wrong. So the men only discovered that they had the disease at various dates from 1955 onwards; and this House was compelled by the terms of the statute to reach the absurd result that a man's claim may be time barred before it is possible for him to know that he has suffered any damage.

3

Obviously one of the purposes of the 1963 Act was to remedy the defect in the law brought to light in Cartledge's case. But that cannot have been the only purpose. That purpose could have been achieved by a short and simple amendment providing that in cases where the existence of damage caused by a wrongful act or omission cannot (or cannot reasonably) be discovered immediately, time shall not begin to run against the injured person until the first date when by reasonable enquiry he could have discovered the damage. The Appellants suggest that Parliament only had in mind that case and the case where, although the injured person knows at once that he has suffered some damage, he cannot know until later the true nature or extent of the damage. That case could have been covered by the kind of amendment which I have suggested by making it apply not only where the existence of the damage but also its true character or extent could not reasonably be discovered immediately.

4

But the 1963 Act goes far farther than that. It provides by section 1 that the time limit of three years shall not afford a defence in any action for damages for personal injuries caused by negligence nuisance or breach of duty if the requirements of the section are satisfied. The types of case to which the Appellants say the application of the Act is confined form only a minute proportion of such actions of damage for personal injuries. So one must suppose that the Act must be intended to have some more general application to the vast majority of such actions.

5

Normally one expects to be able to find at least some clue to the general purpose and policy of an Act by reading it as a whole in light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy. But here I can find none. The obscurity of the Act has been frequently and severely criticised: indeed I think this Act has a strong claim to the distinction of being the worst drafted Act on the statute book. But even so I cannot believe that it could have been so elaborately drafted if it had been intended only to have the very limited application for which the Appellants contend.

6

We were invited by counsel for the Appellants to look at the Committee Report which preceded the drafting of the Act. We decided not to do so. It is true that we were only asked to do so in order to see what the committee thought was the problem to be solved. But it would require superhuman powers of detachment to avoid noting what they recommended as the remedy. And it would be misleading to look at their recommendations without also looking at Hansard to see how the problem was presented to Parliament. I have on more than one occasion stated the grave practical difficulties of doing that. Not only would it substantially increase the work of counsel and therefore the cost to litigants but in many cases it would be impracticable to obtain access to reports of the committee stage in Select Committee of the House of Commons where useful material would be most likely to be found.

7

This at least is plain. The Act extends the three years' time limit in cases where some fact was for a time after the damage was suffered outside the knowledge of the plaintiff, if that fact was "material" and "decisive". Before a person can reasonably bring an action he (or his advisers) must know or at least believe that he can establish (1) that he has suffered certain injuries; (2) that the defendant (or those for whom he is responsible) has done or failed to do certain acts; (3) that his injuries were caused by those acts or omissions; and (4) that those acts or omissions involved negligence or breach of duty.

8

In the present case the first three of these were all known to the Respondent more than twelve months before this action was brought, but the fourth was not: he only got to know of it some six months before the writ was issued. The question for decision is whether the fact that the Appellants' acts involved or amounted to negligence or breach of duty is or can be a "material" or "decisive" fact within the meaning of the Act.

9

Some clue as to the intention of Parliament can perhaps be got from the way in which the Act deals with the plaintiff's knowledge. His knowledge may be actual or constructive and section 7 (5) provides that, if he does not have actual knowledge, he does not have constructive knowledge if—

"( b) in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and

( c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances.

……

(8) In this section 'appropriate advice', in relation to any fact or circumstances, means the advice of competent persons qualified, in their respective spheres, to advise on the medical, legal and other aspects of that fact or those circumstances, as the case may be."

10

In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.

11

Apart from opinions recently expressed in this House on a very limited class of case in Herrington's case [1972] 2 W.L.R. 537 this is, I think, a novelty in the law of tort. It shews that Parliament had in mind the common knowledge that most people do not have a legal or businesslike turn of mind. Among other things they are reluctant to visit the terra incognita of a solicitor's office. Indeed that reluctance has...

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