This post is by Rachit Buch.
This decision shows that the human impact of an asbestos-related diagnosis can be a significant factor in limitation decisions under s.33 of the Limitation Act 1980. This, along with the lack of prejudice to the defendant, was a crucial factor in the claimant’s successful s.33 application, which was not overturned by Yip J on appeal.
George Dunn developed asbestosis. He died from bronchopneumonia on 22 March 2012. The claim was issued posthumously on 15 March 2015. It was alleged that Mr Dunn had been exposed to asbestos in the course of his work for two defendants.
Mr Dunn was informed of his diagnosis in 2008. He was advised to seek legal advice about bringing a claim. However, he had other significant health problems. His health deteriorated until he passed away. In April 2012, an inquest into his death concluded that he died of industrial disease.
Mr Dunn’s widow gave evidence that “the asbestos problems seemed irrelevant…” against the background of the other health issues.
Unsurprisingly, and without challenge on appeal, the judge found that Mr Dunn’s date of knowledge was October 2008.
But the judge found that the delay in bringing the claim was understandable: “He and his wife were concentrating on his health rather than pursuing any potential litigation, and it seems to me that is an excusable reason.”
As to prejudice, the Defendants were found not to be in any different position in 2015 than they were in 2008.
The judge exercised his discretion under s.33 and allowed the claim to proceed out of time.
A number of points were pursued on appeal. The arguments in relation to the reasons for the delay and prejudice are of most interest.
The law has been summarised most recently in Carroll v Chief Constable of Greater Manchester  EWCA 1992.
Mrs Justice Yip placed emphasis on the caution advised by McCombe L.J. in Carr v Panel Products  EWCA Civ 190 at  where he stated that one ‘brick’ in the wall of a s.33 decision being shaky need not undermine the overall conclusion, unless it is a ‘foundation stone’ that proved to be unsound.
Here, the two ‘foundation stones’ were reasons for the delay and prejudice.
On delay, Yip J assessed the reasons given by the judge for accepting that the delay was excusable and endorsed the conclusion (). Though there was no explicit consideration of the period after death, it was clear from the judge’s decision that the claimant’s focus on other matters, and her instruction of solicitors a month after the inquest, was understandable.
On prejudice, the judge’s conclusion that the Defendants were in no worse a position in 2015 than they would have been in 2008 was “the only sensible conclusion” that the judge could have reached on the evidence.
Although “the judge might have expressed himself more clearly in relation to other matters”, Yip J held that it would be inappropriate to interfere with his discretion under s.33. The Defendants’ appeal was dismissed.
The facts underlying this decision are not uncommon: limitation having expired before the date of death with almost three more years passing before proceedings were issued.
Dunn shows that, in stepping back from the individual factors identified in s.33(3) of the 1980 Act, the reasons for the delay and prejudice will be crucial factors in determining the ultimate question in s.33(1). Whilst the objective evidence on knowledge will lead to the date of knowledge decision, the subjective factors for failing to issue proceedings may tip the balance.
The judgment on appeal also provides useful guidance on assessing the merits of a s.33 appeal. Though the losing party might properly identify flaws in the decision at first instance, the emphasis has to be on whether or not those flaws are sufficiently important to shake the foundation of the decision.
The verdict would likely have been much the same according to Dutch law, as seen e.g. in asbestos cases where the victim acted quickly after the diagnosis against the liable employer, but still after the period of limitation has passed. Also in cases of incest where the period of limitation has officially passed, but the victim simply wasn’t emotionally able to act earlier against the purpetrator.