Personal injury bulletin: costs and procedure
Collins v (1) Secretary of State for Business Innovation & Skills (2) Stena Lane Irish Sea Ferries Ltd (2014) EWCA Civ 717
The claimant had been a dock worker from 1947 to 1967 unloading asbestos. In 2002, he was diagnosed with inoperable lung cancer. Radiotherapy however, was successful. The claimant was examined numerous times by his doctors between 2002 and 2008. He did not instruct solicitors until 2009 and proceedings were not issued until 2012. The judge found the claimant had actual knowledge of the possible link in 2009 but that he had constructive knowledge under section 14(3) in mid-2003. It had been reasonable for the claimant to make enquiries as to the cause of his cancer by mid-2003 and it was inconceivable that, if asked, the claimant would not have mentioned his asbestos exposure. It was found, therefore, that limitation expired in mid-2006. The judge found that it was not equitable to dis-apply this when applying the criteria in section 33 and took into account the prejudice to the defendant.
The claimant appealed. It was held that by applying the objective test under section 14(3), the judge was right that the reasonable person would have asked about the cause of his cancer by mid-2003. The claimant’s medical records showed that in 2002 he was asked about his lifestyle and former employment. Those questions were asked for a purpose and any reasonable person would have been prompted to inquire what light that shed on the possible causes of his cancer. The judge was right to find the claimant had constructive knowledge in mid-2003 and the district judge’s decision not to exercise his discretion under section 33 was upheld. In the judgment, Jackson LJ said that there was a balance between the needs of the claimants who, ‘having suffered latent injuries, seek compensation late in the day’ and tortfeasors who, ‘despite their wrongdoings, ultimately need closure’…
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