LIMITATION AND EXPOSURE TO ASBESTOS: CLAIMANT DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE & ACTION ISSUED WITHIN TIME

In  Balls v Reeve & Anor [2021] EWHC 751 (QB) David Pittaway QC (sitting as a Deputy Judge of the High Court) found that the claimant’s date of knowledge was not more than three years prior to issue.

THE CASE

The claimant was employed by the defendant between 1953 and 1983. His case was that he was regularly exposed to asbestos and had contracted asbestosis as a result.  The judge was asked to consider: (i) whether the action was statute barred; (ii) if so whether the court should exercise its discretion under S.33 of the Limitation Act 1980; (iii) whether there was exposure in fact.

THE JUDGMENT ON THE LIMITATION ISSUE

The judge found that the claimant did not have actual or constructive knowledge more than three years prior to issue. If he had such knowledge the judge would have exercised his discretion under Section 33 of the Limitation Act 1980 in the claimant’s favour in any event.

1. 1. The view that I have come to is that Mr Ball did not have actual knowledge of a significant injury attributable to his exposure to asbestos during the course of his employment with ST Thurlow, in the period between 1979 and 1984, until asbestosis was diagnosed in August 2017. Mr Ball was a feisty witness who was determined in what he said and how he said it. I formed the view that he was entirely truthful and gave the best account that he could as to his symptoms. His evidence, volunteered by him, that he may have discussed breathing problems at Mr Thurlow’s eldest son’s funeral in 2004 was characteristic of the man. Even though he accepted that he had suffered from respiratory problems for some years, he clearly considered they were not sufficiently serious to bring them to the attention to his GP or doctors at hospital appointments until early 2017. He conceded that he had been sent a copy of the hospital’s letter sent to his GP in 2013 but he said that he had not regarded the reference there to exposure to asbestos as being asbestosis. I accept Mr Archer’s submission that Mr Balls’ asbestosis was an insidious progressive disease which did not manifest itself until late 2016, after which time it was promptly diagnosed.

1. 1. Nevertheless, the issue of constructive knowledge is more difficult. Whilst I accept Mr Jaspal’s submission that the questions I should ask are what Mr Balls knew of his injury, what he ought to have known and then ask whether a reasonable person, armed with such combined knowledge, would have considered the injury significant, on balance I am not satisfied that Mr Balls should be fixed with constructive knowledge. The main reason I have come to that view is that I accept Mr Archer’s submission, which I repeat, that asbestosis was not diagnosed until August 2017. I also accept the distinction that he draws a between the x-ray being interpreted as showing signs of asbestos exposure and asbestosis. The two are very different, the former capable of being harmless, the latter being the development an asbestos-related disease. As late as 2013 the imaging did not show that Mr Balls had developed asbestosis. Set against that is Mr Balls own admission that he had suffered breathing problems “for years” and the reported conversations he had with Mr Thurlow. It is noteworthy that Mr Balls had been referred to hospital in 2013 because of weight loss, and although there was reference to exposure to asbestos on in the copy letter he received, neither the hospital nor the GP decided to take it further. I have already cautioned against placing weight on the evidence of Mr Thurlow’s relatives as to what Mr Thurlow had said to them, probably in 2004 or 2005. In my view, the description of “asbestos” or “asbestosis” may well have been the description placed by Mr Thurlow upon what Mr Balls told Mr Thurlow rather than what he did tell him. Whether that is or is not a correct interpretation of the conversation is speculative. The circumstances in which Mr Balls Industrial Injuries Disablement Benefit, which he was awarded in September 2017, was backdated to 2015 remain obscure. They were not explained in Mr Balls’ witness statement or explored in cross-examination. In any event, the benefit was applied for after the diagnosis of asbestosis was made.

1. If I am wrong on the date of knowledge, then I would have exercised my discretion under section 33 of the Act 1980 to permit the claim to proceed. I have considered the criteria set out in the section, and all the circumstances of the case, and concluded that to deprive Mr Balls of the opportunity to pursue a remedy would be unjust. I do not find that there is any serious prejudice to the Defendants as a result of any delay in bringing these proceedings. The events took place a very long time ago and even if I had concluded that Mr Thurlow had the requisite knowledge by 2004, which I do not, I very much doubt that the evidence available would have been very different from today. In my view, the evidence of the general nature of the building works undertaken by ST Thurlow and the pattern of work of Mr Balls, as a carpenter would have been broadly the same. Certainly by 2015, Mr Thurlow was dead, and if the action had been commenced within three years of the x-ray result being reported to Mr Balls in 2013, the probability is that Mr Thurlow would not have been alive to give evidence, indeed the claim may not have been notified to the Defendants’ insurers, in order for a witness statement to have been obtained from him. I find nothing in the other criteria or case law that would displace me from the conclusion which I have reached.