Young (Deceased) v Western Power Distribution (South West) Plc

This Court is once again required to decide upon the true reach of the House of Lords decision in Walkley-v- Precision Forgings Limited [1979] 1 WLR 606. Here, for the first time, the question arises in the context of a widow's claim, a claim brought both under the Fatal Accidents Act 1976 ("the 1976 Act") and under the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act").

Before seeking to identify the precise points at issue, it is convenient first to relate the facts of the case. This I propose to do quite shortly: to set them out in any great detail would, I believe, cloud rather than illuminate the real issues arising.

We are here concerned with two successive actions, the first begun by Barry Young (the deceased) against his employers (the appellants) on 6 January 1995 and discontinued by him on 17 January 1997, the second brought following his death at the age of 55 on 2 March 1999 by Jean Young, his widow and executrix (the respondent), on 22 May 2002.

The deceased worked for the appellants (originally called the South Western Electricity Board) from when he left school in 1959 until his retirement on medical grounds in January 199In the course of that employment he had been exposed intermittently to contact with asbestos from as early as 1961. After first becoming unwell in 1991 he was told by his treating specialist, Dr Forrester-Wood, a consultant thoracic surgeon, on 21 December 1993 that he had an asbestos related malignant mesothelioma. That advice was based substantially on a histological report by Dr Ibrahim suggesting the probability of mesothelioma but recognising that "the possibility of adenocarcinoma cannot be ruled out" and stating that further studies would be carried out and a supplementary report issued. A diagnosis of adenocarcinoma would not have supported an asbestos related industrial injury claim.

Following Dr Forrester-Wood's report a letter of claim was written by Mr Young's solicitors, Lawford and Co, on 7 April 1994 and, as already stated, proceedings were issued on his behalf on 6 January 1995.

Meantime, on 31 December 1993, Dr Ibrahim had carried out further studies and recorded that their results "would favour metastatic adenocarcinoma rather than malignant mesothelioma". For whatever reason, this report did not at the time come to the attention of either the deceased, his solicitors, his treating doctor or Dr Rudd, the expert witness then instructed on his behalf who at that stage supported Dr Forrester-Wood's diagnosis. Rather it came to light only in 1995 when the appellants themselves began to investigate the deceased's condition. They first instructed Professor Newman-Taylor. He then brought in Professor Corrin who in turn contacted Dr Ibrahim and learned of his further studies in December 1993 and of his revised view of the case.

On 26 July 1996 the appellants disclosed their medical evidence which, unsurprisingly perhaps having regard to Dr Ibrahim's report of 31 December 1993, concluded that the deceased was suffering from adenocarcinoma rather than mesothelioma so that no claim would lie. At the same time they invited Lawfords to "reconsider your client's position". Lawfords thereupon again consulted Dr Rudd who on 15 August 1996 wrote as follows:

"In the light of the further pathological studies and in particular Professor Corrin's opinion I accept that there must be considerable doubt as to whether the diagnosis of mesothelioma was correct. However, it is notoriously difficult to distinguish between mesothelioma and adenocarcinoma on the basis of pleural biopsy specimens and it is often not until post mortem examination, when large amounts of tissue are available for inspection, that a definitive diagnosis is made.

If the tumour is mesothelioma, I remain of the view that, on the balance of probabilities, it was caused by asbestos exposure. I certainly do not accept Professor Newman-Taylor's suggestion that a minimum of three months of heavy asbestos exposure is necessary to cause mesothelioma. Most experts agree that there is no convincing evidence for a threshold dose of asbestos below which there is no risk of mesothelioma.

If the tumour is adenocarcinoma it will not be possible to show that it was caused by asbestos exposure. As Professor Newman-Taylor points out, the site of origin is unknown. Even if it were established that it originated in the lung the history of asbestos exposure is not sufficiently substantial to form a basis upon which to conclude that asbestos exposure materially increased his risk of development of lung cancer.

In summary, Professor Corrin's finding shed considerable doubt on the diagnosis of mesothelioma but I would not consider it safe to reach a final conclusion that he does not have mesothelioma until the results of post mortem examination are available."

Having received that advice, Lawfords withdrew the action from the warned list and, on 17 January 1997, discontinued it, the appellants agreeing to bear their own costs of the proceedings.

Just over two years later, on 2 March 1999, the deceased died whereupon it was quickly discovered that he had after all been suffering from mesothelioma. This view was expressed by Dr Ibrahim in a letter dated 17 March 1999 and it was a view shared by other doctors also then consulted. An inquest took place in June 1999 and concluded that the deceased's death had indeed been due to industrial disease. The death certificate gave his cause of death as mesothelioma. The deceased's case, it is right to note, was an unusual one: death normally follows within 12 —18 months of the first onset of symptoms, not, as here, some seven or eight years later.

In the light of the post mortem evidence the respondent widow brought fresh proceedings. She instructed different solicitors, Messrs Russell Jones and Walker. Mr Whitehead of that firm understood that the respondent had three years from the date of the deceased's death to bring her action and left it until 25 February 2002 to attempt to do so. In the event there was a slip up in issuing the claim and proceedings were not effectively begun until 22 May 2002.

Besides contesting all aspects of liability, the appellants pleaded in addition that the respondent's claims are statute-barred under ss11 and 12 of the Limitation Act 1980 ("the 1980 Act"). The respondent in reply sought the exercise of the court's discretion under s33 of the Act to disapply ss 11 and 12.

On 25 September 2002 an order was made for the trial of a preliminary issue as to whether the respondent's action should continue. That issue came before His Honour Judge Mackay sitting as a High Court Judge on 5 March 2003. He held, first, that, Walkley notwithstanding, a s33 discretion fell to be exercised in the case and, secondly, that it should be exercised in favour of the respondent so as to disapply ss 11 and 12 and allow her claim to proceed. The appellant employers now appeal to this court by permission of the judge below.

It will be important throughout this judgment to keep in mind the principal statutory provisions governing derivative claims of this nature and the time limits that apply to them. First, with regard to the 1934 Act claim, s1(1) of that Act provides, so far as material:

"… on the death of any person after the commencement of this Act all causes of action … vested in him shall survive … for the benefit of his estate."

Section 11 of the Limitation Act 1980 deals with claims for damages for personal injuries and by subsections (4) and (5) provides:

"(4) Except where subsection (5) below applies, the period applicable is three years from-

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

(5) If the person injured dies before the expiration of the period mentioned in subsection (4) above, the period applicable as respects the cause of action surviving for the benefit of his estate by virtue of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 shall be three years from-

(a) the date of death; or

(b) the date of the personal representative's knowledge;

whichever is the later."

Next, the governing provisions with regard to the Fatal Accidents Act claim. Section 1(1) of the 1976 Act provides:

"If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured."

Section 12 of the 1980 Act imposes, as its heading states, a "Special time limit for actions under Fatal Accidents legislation". So far as material it provides:

"12(1) An action under the Fatal Accidents Act 1976 shall not be brought if the death occurred when the person injured could no longer maintain an action and recover damages in respect of the injury...