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Young (deceased) v Western Power Distribution (South West) plc, Court of Appeal, 18 July 2003

29 July 2003
The issues

Asbestos – mesothelioma – limitation – Walkley v Precision Forgings Limited – date of knowledge – human rights.

The facts

The deceased worked for Western Power Distribution then South Western Electricity Board from 1959 when he left school until retirement on medical grounds in January 1994. He had been exposed to asbestos during this time in the course of that employment from 1961. He became unwell in 1991. In December 1993 he was told he had an asbestos related malignant mesothelioma. He commenced an action against his employers on the 6th January 1995. He discontinued it in January 1997 because the medical evidence suggested that the original diagnosis was doubtful. He died aged 55 on the 2nd March 1999. On the 22nd May 2002 the Claimant’s widow and executrix brought a second action. The Defendants denied liability and pleaded limitation. The Claimant sought the Court’s discretion under s.33 of the Limitation Act 1980 to disapply ss 11 and 12. When the matter came before the Judge as a preliminary issue he exercised his discretion in favour of the widow/Claimant. The Defendant appealed.

The decision

1. As to the claim under the Fatal Accidents Act 1976; the claim was statute barred. At the time that the deceased had died he could no longer have maintained an action. Having taken abortive proceedings the principle in Walkley v Precision Forgings Limited was a bar to any further proceedings. The discretion did not apply because s.33 conferred a discretion only in cases where the original Claimant had been prejudiced by not having issued proceedings within the primary limitation period and this was not the case here.

2. As to the claim under Law Reform (Miscellaneous Provisions) Act 1934; this claim was also statute barred. The Claimant could not rely on s.33 of the 1980 Limitation Act. At the time that the deceased had died there was no cause of action vested in him again because of the decision in Walkley. The widow could not be in a better position than the deceased.

3. The Walkley principle was not contrary to Article 6 of the European Convention on Human Rights.

Comments

1. Walkley involved a Claimants attempt to bring a second action in respect of an industrial injury claim outside limitation. He had brought an earlier action in time but feared that it would be dismissed for want of prosecution. The House of Lords held that he could not bring a second action because he had not been prejudiced by the primary limitation period since he had issued his initial claim in time. There was therefore no discretion to be exercised under s.33 which required as a pre-condition that the primary limitation provision caused prejudice to the Claimant. Interestingly perhaps Lord Justice Simon Brown who gave the main Judgment suggested that the Claimant’s advisers in the first action could have avoided the plight that the widow found herself in by either discontinuing the action on terms rather than unconditionally or to have applied for the action to be stayed if need be until after the deceased’s death.

2. The insurers will be aware that the Law Commission in its report on limitation of action recommended an end to the Walkley principle. The Government has indicated that it accepts that recommendation in principle and legislation is awaited.

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