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Buckley v Sheffield City Council, Court of Appeal, 21 June 2004

30 June 2004
The issues

Limitation Act 1980 – Pleural Plaques – Whether the discretion could be exercised

The facts

Claimant was employed by the Defendant Council in 1970s. In 1991 he had been told by his doctor that he had pleural thickening of the left lung which carried a risk of lung cancer. His doctor alerted him to the possibility of bringing legal proceedings against his previous employers. The Claimant however took the view that he had a very mild condition and that it was not worth doing. Throughout the 1990s the Claimant had further screenings and his condition did not deteriorate. In 1999 whereas previously his condition had been described as “slight scarring” he was told his condition was “pleural plaques” and he believed – wrongly – that this meant his condition had got worse. In April 2003 he issued proceedings. The matter came before the Judge on the preliminary issue as to limitation. The Judge found against the Claimant as to the date of knowledge – finding that he had actual knowledge in 1991. As to the discretion, the Judge found that it was reasonable for the Claimant to do nothing between 1991 and 1999 and that it was only in 1999 that he thought his condition had got worse. The Judge exercised the discretion accordingly.

The Defendant appealed.

The decision

1. The Judge had the discretion under Section 33 of the 1980 Act which was unfettered was entitled to take into account all the circumstances of the case in deciding whether it was equitable to dis-apply the limitation period.

2. The burden of establishing whether the discretion should be exercised would lay on the Claimant.

3. The Judge had to consider the length of delay in starting proceedings and the reasons and in particular whether the reason had been a good or bad one.

4. In 1991 the Claimant, then fixed with knowledge, had taken the view that he would not bring proceedings. That the Claimant had misunderstood and thought that his condition had changed did not deal with the fact that he had consciously decided not to begin proceedings in 1991. He had failed to show any reason for his long delay. The Judge did not properly address the delay in terms of Section 33 (3) (e) (the Claimant’s condition) and had misapplied Section 33 (3) (a) – (the length and reasons for delay).

Appeal allowed.

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