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Davies v The Secretary of State for Energy, Court of Appeal, 25 October 2012

13 November 2012
The issues

Limitation – exercise of the discretion – Limitation Act 1980 Section 33 – whether basic period for limitation should be disallowed

The facts

The question before the Court of Appeal was whether eight representative miners should be allowed to bring, long after the expiry of the limitation period, actions against the mine operators. Alleging that negligently and in breach of statutory duty they had exposed the miners to conditions which were responsible in due course for the onset and development of osteoarthritis of the knee. The underground working lives of the eight claimants spanned the period between 1954 and 1993. All eight claimants suffered severe, painful and disabling osteoarthritis of the knee. There was no doubt that a substantial cause of the development of this disease was the repeated jarring and stressing to the knee joints of the claimants, to which their conditions of work underground gave rise.

There were other factors which might contribute to the development of osteoarthritis however. Amongst the other conditions were inherited genetic factors, repetitive joint damage, obesity, etc. Of the eight lead claimants, the shortest period of delay between expiry of the limitation period and the issue of proceedings was 10 years. The longest was 21 years. The average period of delay across the eight claimants was 15.6 years. The court had to resolve the question as to whether it would be equitable to allow each or any of the eight actions begun by the lead claimants to proceed, notwithstanding that delay. That involved assessing the extent to which the claimants might, after the delay, still be in a position to prove their cases, but also the extent to which the defendants might be in a position to rebut the allegations of fault raised against the defendants. The judge at first instance decided that it would not be equitable to allow the actions to proceed.

The claimants appealed.

The decision

Section 33 of the Limitation Act 1980 involved an exercise of discretion. The court would not interfere with the exercise of discretion by a judge below unless he had misdirected himself in law, had taken an irrelevant factor into account, or had omitted to consider a relevant factor or had otherwise reached a conclusion which was irrational or clearly wrong (AB v Ministry of Defence).

The appeal was contained in three grounds – first that the judge had wrongly applied the broad merits test; secondly that his assessment of the impact of delay on the cogency of the evidence was wrong; and thirdly, that his analysis of the reasons for the delay was wrong.

Broad merits

The Court of Appeal concluded that there was a clear distinction between the industrial disease cases, which concerned continuous exposure to a dangerous state of affairs or toxic substance and this case, which was not concerned with exposure to a single disease inducing agent or condition

Under Section 33 of the Limitation Act 1980, the court had to take into account all the circumstances of the case. Amongst those circumstances was the strength or weakness of a claim. If the claim was weak, there might be significant and relevant prejudice to the defendant in disapplying the limitation provision and exposing him to a long and costly trial. Conversely it was more prejudicial to a claimant to be deprived of a cause of action when he was almost bound to succeed, and one that looked highly speculative.

The judge had recognised that the claimants description of the conditions of identified roadways over which they were obliged to work for identifiable periods of their service underground might be sufficient to establish a prima facie case of breach of statutory duty. That would be only the beginning in that the claimants would need to establish the causative potency of any breach, having regard to the many other non-actionable potential causes of trauma to the knee.

The judge had recognised that this would cast upon the employers an evidential burden of rebuttal in terms of impracticability. To the Court of Appeal it seemed that the relative ease of establishing a prima facie case of breach of statutory duty of this sort threw into very stark relief the grave prejudice imposed upon employers if they were required to attempt to rebut by cogent evidence.

The judge had not concluded that the claimants had no reasonable prospect of success, but rather had identified the issues likely to arise at any substantive trial and the evidence required both to prove and defend the claims. He concluded that had the claims been brought within time the task would have been difficult enough, but the further passage of time had rendered the available evidence less cogent, to the point of it being impossible for the issues to be fairly tried.

The impact of delay on the cogency of the evidence
The claimants argued that the judge was wrong to have concluded in the light of the nature of the factual evidence that the expert evidence was going to be at too high a level of generality to be of any relevance or real assistance. They argued that this case was akin to industrial disease cases where judges had grappled with this problem and had carried out an apportionment exercise as best they could. The Court of Appeal concluded that there was a clear distinction between the industrial disease cases, which concerned continuous exposure to a dangerous state of affairs or toxic substance and this case, which was not concerned with exposure to a single disease inducing agent or condition. The judge was right to regard it as more akin to an accident case or to a case concerned with a whole series of accidents, than to one concerned with continuous exposure to a single toxic agent or substance. The question of whether the employers were at any given time, in respect of any given roadway, in breach of the duty cast upon them could not be resolved other than by a detailed examination of the circumstances in which a roadway became obstructed and the opportunity and resources available to the employers to remedy the situation.

The judge had been entitled to look at the totality of the delay, including the addition three years elapsed between date of knowledge and expiry of the limitation period, following the decision in Donovan v Gwentoys Ltd. He also concluded that post-limitation period delay had had a serious impact upon the cogency of the evidence. He found a dearth of available and willing witnesses at the managerial level. He was mindful of the impact of delay on recollection generally. He found the documentary evidence unsatisfactory in that the surviving evidence could only go so far to create the kind of picture necessary to show a case of repeated failures amounting to negligence and breach of duty. The documentation which had survived tended to concentrate upon major incidents.

The reasons for the delay
Throughout the period of the delay, all the claimants had believed that the cause of their knee condition was kneeling, crawling, walking on uneven surfaces, stumbling, tripping and heavy lifting in a bended knee position. They made no further enquiry because they regarded these activities as simply part and parcel of their work. To acquire knowledge under Section 14, a claimant had to know or be in a position reasonably to know that he had suffered an injury significant enough to justify bringing a claim in consequence of identifiable acts or admissions of an identifiable person. What was not required was that a claimant knew there was a cause of action. It was enough that enough was known for it to be reasonable to investigate further. The purpose of Section 33 was to correct injustice, not to preserve indefinitely the ability to bring a claim. The judge had been right to regard the claimant’s failures to make appropriate enquiries as not telling in their favour when he came to exercise his discretion.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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