Thompson v Brown
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Elwyn-Jones,Lord Fraser of Tullybelton,Lord Scarman,Lord Bridge of Harwich |
| Judgment Date | 07 May 1981 |
| Judgment citation (vLex) | [1981] UKHL J0507-1 |
| Date | 07 May 1981 |
| Court | House of Lords |
[1981] UKHL J0507-1
Lord Diplock
Lord Elwyn-Jones
Lord Fraser of Tullybelton
Lord Scarman
Lord Bridge of Harwich
House of Lords
My Lords,
On 4th March 1976 scaffolding that had been erected by the second respondents ("the scaffolders") at the Ebbw Vale works of the British Steel Corporation collapsed and injured the appellant (Mr. Thompson) a bricklayer's labourer employed by the first respondents ("the builders"). Through his trade union Mr. Thompson was put in touch with solicitors who took up his claim against the scaffolders and the builders for damages for personal injuries caused by their negligence. The solicitors acted promptly; as early as 27th April 1976 the claim was notified to both intended defendants who referred it to their respective insurers. The scaffolders were clearly liable to Mr. Thompson, so it was their insurers who conducted the negotiations for settling the case. On 17 March 1977 these insurers wrote to Mr. Thompson's solicitors saying that they had completed their enquiries and were prepared to put forward an offer in settlement of the case. They asked for particulars of Mr. Thompson's earnings and a medical report. The solicitors encountered considerable delay in obtaining the medical report and, at some date after August 1977, their file dealing with Mr. Thompson's claim became mislaid and forgotten. It was not rediscovered until the Spring of 1979, and the writ was not issued until 10th April 1979—thirty-seven days after the expiration of the three-year limitation period under section 2A of the Limitation Act 1939, as amended by the Limitation Act 1975. The sections of that Act that fall to be construed in this appeal have since been replaced by sections II to 14 and 33 of the Limitation Act 1980, but the relevant words remain the same.
The statement of claim followed three days after the writ. The builders as well as the scaffolders were made defendants; but since it is undisputed that the accident was entirely due to the negligence of the scaffolders, the fact that the builders are also parties to the action may now be ignored. In their defence the scaffolders pleaded the Limitation Act 1939 and denied that it would be equitable to allow the action to proceed under section 2D notwithstanding the expiry of the three-year limitation period under section 2A. The issue raised by this defence was tried as a preliminary issue by Phillips J. on 16th May 1980. That learned judge was of opinion that if the action were not allowed to proceed Mr. Thompson would have a "cast-iron" case in an action for negligence against his own solicitors in which the damages recoverable would be at least as much as, and, it may be, more than, those which would have been recoverable against the scaffolders if the action against them had been allowed to proceed. Although it was disputed by counsel for Mr. Thompson at the hearing before Phillips J. it has been conceded before your Lordships' House that this is indeed so.
The judge was of opinion that in these circumstances he was bound by an unreported decision of the Court of Appeal in Browes v. Jones & Middleton and H. Camm & Co. Ltd. (15th June 1979) to hold as a matter of law that the provisions of section 2A had not prejudiced Mr. Thompson and that the court had no jurisdiction under section 2D to direct thatthose provisions should not apply to his cause of action against the scaffolders. So he gave the appropriate certificate under section 12 of the Administration of Justice Act 1969 to enable an appeal from his decision to come direct to your Lordships' House by the "leap-frog" procedure.
My Lords, the unreported case of Browes was one in which the early history of the matter was similar to the instant case. The plaintiff, Browes, had been injured in a traffic accident by the undoubted negligence of a lorry driver employed by H. Camm Ltd. He went to solicitors, Jones & Middleton, who conducted negotiations with Camm's insurers but allowed the three-years limitation period under section 2A to expire before they had issued a writ. On learning that the limitation point would be relied upon by Camm if a writ should be issued, Jones & Middleton advised Browes to consult other solicitors. He did so and, on their advice, started an action against Jones & Middleton claiming damages for their negligence as solicitors. That action had gone on for a year against Jones & Middleton alone before Camm was added as a second defendant. Camm pleaded section 2A of the Limitation Act 1939 as a defence and this was tried as a preliminary issue. Paradoxically notwithstanding that it was the plaintiff, Browes, who had joined Camm as a defendant it was his counsel who was arguing strenuously that the plaintiff had not been prejudiced by his former solicitors' failure to issue the writ within the time limited by section 2A, and it was counsel for his former solicitors who was arguing strenuously that he had. There were additional complications into which it would not be profitable to go. Suffice it to say that the Court of Appeal felt compelled by the reasoning in the speeches of Viscount Dilhorne and myself in Walkley v. Precision Forgings Ltd. [1979] 1 W.L.R. 606 to hold that section 2D did not apply in the circumstances of that case.
My Lords, I shall have to refer briefly to Walkley in connection with the construction of sections 2A and 2D; but in view of the very special facts of Browes and the bizarre course that the argument took, the law reporters, in my opinion, exercised a wise discretion in consigning it to the limbo of unreported cases. For reasons I shall endeavour to develop it ought not to be treated as authority for the proposition of law that Mr. Justice Phillips treated it as laying down.
In approaching the construction of sections 2A and 2D of the Limitation Act 1939 (now sections 11 and 14 and section 33 of the Limitation Act 1980) account must be taken of the legislative history of these sections. The Limitation Act 1939 by section 2 re-enacted the limitation period of six years from the date on which the cause of action accrued for actions founded in tort. The Law Reform (Limitation of Actions, &c.) Act 1954, section 2(1), reduced this period to three years in actions for damages for personal injuries. This shortened period led to what was felt to be injustice, particularly in cases of long-maturing industrial diseases; and the somewhat complicated provisions of Part I of the Limitation Act 1963 were passed in the hope that they would provide an equitable solution. These proved to be unsatisfactory in application and gave rise to considerable differences of judicial opinion as to their true interpretation, particularly as to whether a plaintiff's ignorance that acts or omissions by the defendant that were known to him gave him in law a cause of action, had the effect of extending the limitation period, cf. Smith v. Central Asbestos Co. Ltd. [1973] A.C. 518.
Section 1 of the Limitation Act 1975 represented the next attempt by Parliament to solve the problem. It did so by adding four new sections 2A, 2B, 2C and 2D to the Limitation Act 1939. The sections relevant to the instant case were 2A and 2D, and for the purpose of seeing how they apply it, it is convenient to set out most of their provisions in extenso leaving out only those which deal with cases when the person injured has died.
"2A.—(1) This section applies to any action for damage for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(2) Section 2 of this Act shall not apply to an action to which this section applies.
(3) Subject to section 2D below, an action to which this section applies shall not be brought after the expiration of the period specified in subsections (4) and (5) below.
(4) Except where subsection (5) applies, the said period is three years from—
( a) the date on which the cause of action accrued, or
( b) the date (if later) of the plaintiff's knowledge.
(5) ….
(6) In this section, and in section 2B below, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—
( a) that the injury in question was significant, and
( b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty, and
( c) the identity of the defendant, and
( d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant, and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(7) For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8) For the purposes of the said sections a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
( a) from facts observable or ascertainable by him, or
( b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,
but a person shall not be fixed under this...
To continue reading
Request your trial
-
Cain v Francis; McKay v Hamlani
...defendant would suffer. Certainly the aspects of prejudice on which this claimant had relied could not do so. 19 Mr Burton referred to Thompson v Brown [1981]1WLR 744, where the House of Lords considered, I think for the first time, section 2D of the Limitation Act 1939, (inserted by the Li......
-
Nicole Daedone v British Broadcasting Corporation
...case and s.33(2) in a personal injury case. 11.2 Secondly, the principles enunciated by Lord Diplock in the personal injury case of Thompson v. Brown [1981] 1 W.L.R. 744 are of general application: see Steedman v. BBC [2001] EWCA Civ 1534, [2002] E.M.L.R. 17, at [17]–[18]. Thus: a) A dir......
-
Hartley v Birmingham City District Council
...of the proper application of the power to disapply limitation provisions has been considered by the House of Lords on two occasions. In Thomson v. Brown [1981] 1 WLR 744 Phillips J. had held that he was obliged to refuse an application to disapply the relevant limitation provision by the de......
-
Brady v Norman
...Disapplying the time limit will always prejudice a defendant, because he will lose his limitation defence. So said Lord Diplock in Thompson v Brown [1981] 1 WLR 744 at 750B. Refusing to disapply the time limit will always prejudice the claimant, because he will continue to be met with a com......