Preston v BBH solicitors

This is an unhappy case. The Recorder whose order is under appeal, Mr Anton Lodge QC, found the appellant, Mr Peter Preston, the claimant in the court below, to be a man "of honesty and integrity"; he also found that he had been "ill served by the legal system". I agree. Either he was let down by his former solicitors, the respondents, or he was let down by his present solicitors. One way or the other, he has been the victim of litigation disaster. How has this unhappy state of affairs come to pass? Mr Preston is now 75 years old. During his working life in Southampton as a shipwright he was exposed to asbestos dust when he worked in the boatyard at Camper and Nicholson (Yachts) Ltd or for Hiram Walker (UK) Ltd. Feeling unwell, Mr Preston consulted his general practitioner in January and February 2002. Precisely what advice he was given will need to be clarified; the least he was told was that he had pleural plaques and should seek legal advice. That he did, after he had seen an advertisement placed in his local newspaper in October 2002 by Free Claim IDC, who offer help in making personal injury claims. They work in association with the respondent's solicitors, BBH, who Mr Preston consulted in May 2003 with a view to making a claim against his former employers for damages for personal injury suffered in the course of his employment. In fact his claim was not issued until 16 November 2005. A defence was filed but the action was statute barred.

In 2007 Mr Preston changed his solicitors and instructed Atha and Co. They still act for him. Atha and Co advised him that his claim was indeed statute barred. On 30 December 2008 the claim was discontinued and Mr Preston was ordered to pay costs in the agreed sum of £8,000. On 8 June 2009 Mr Preston brought this claim for damages for professional negligence against BBH, alleging that the primary limitation period expired on 20 February 2005 and that BBH had negligently failed to bring the claim before the time expired. BBH denied negligence. Their case is that Mr Preston was not told that he had asbestosis until 21 November 2002; alternatively 1 December 2005, with the result that the claim issued on 16 November 2005 was in fact issued in time.

That action was heard by the Recorder, Mr Anton Lodge QC in the Middlesbrough County Court on 19 November 2010. He ordered that the claim be dismissed with costs. As should by now be apparent, the crucial issue is whether Mr Preston had acquired the requisite knowledge within the meaning of Sections 11 and 14 of the Limitation Act 1980 on 20 February 2002.

By Section 11.4 of the Limitation Act 1980 the time limit for actions in respect of personal injury is three years from a) the date on which the cause of action accrued or b) the date of knowledge of the person injured. Section 14 defines the date of knowledge for the purpose of Section 11 and provides, so far as is material, as follows:

“14.1

…in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—

(a)

that the injury in question was significant; and

(b)that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c)the identity of the defendant; and

(d)if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(2)For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3)For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)

from facts observable or ascertainable by him; or

(b)from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

The relevant fact which Mr Preston needed to know was the fact that under subsection 1A, namely that the injury in question was significant. In this field of asbestos-related injury, what constitutes a significant injury has changed over the time with which we are dealing. In 2002 when Mr Preston consulted his general practitioner, and in 2003 when he instructed the respondents, and even in 2005 when the claim was issued, the perception generally held by the profession was that suffering from pleural plaques was actionable and thus sufficiently serious to justify instituting proceedings. On 26 January 2006 the Court of Appeal ruled otherwise, and on further appeal to the House of Lords in Rothwell v Chemical and Insulating Company Ltd [2007] UKHL 9 [2008] 1 AC 281 their Lordships decided on 17 October 2007 that the development of pleural plaques was not in itself an actionable injury. Lord Hoffman summarised the position as follows:

That being the law, the Recorder held in paragraph 54 that:

It seems to me that the crucial issues of fact for the Recorder to resolve were 1) exactly what was the claimant's medical condition as at 20 February 2002, and 2) exactly what he was told about his medical condition at that time. First, as to his medical condition no medical condition was called, and the Recorder had to rely, as we have to rely, on the general practitioner's notes and the expert's report. The general practitioner records are not entirely clear; they are computerised records, but the relevant entries seem to be these:

The blood pressure was then recorded. Then the note:

On 18 January Dr Rorke has an entry recording the history and the fact that a standard chest X-ray was abnormal: “Asbestos [GMS] exposure, type 1."

On 1 February Dr Dracass found that the problem was a dry cough; the patient's condition was still the same, and he noted:

On 12 February the spirometric tests were carried out, and the problem (review) asbestosis (GMS), whatever that might mean. The relevant entries on 20 February read as follows:

He was not seen by a consultant until 11 July 2005. A Dr Marshall, a consultant chest physician, had apparently received the general practitioner's records as well as the chest X-ray -- the same chest X-ray, we understand, that was taken for the general practitioner. His report records in paragraph 4.1 that the chest X-ray organised by his GP in 2002 showed pleural plaques. His investigation dealt with that chest X-ray and said this:

He dealt with the GP's records and noted that on examination the chest showed fine bibasal crepitations. He then made his own diagnosis:

Dealing with asbestosis he said at 20.3:

So, not surprisingly, Dr Marshall organised that CT scan and reported on it on 1 December 2005 referring to the scan arranged on 23 November, and saying this:

The claimant was next seen by the employer's expert, Dr Hind, instructed, as Mr Andrew Nicol for the respondent's solicitors points out, by the respondents in his appeal. Dr Hind, reporting on 16 February 2007, commented on the date of knowledge, saying that Mr Preston was first told he has had asbestos related pleural plaques by his general practitioner in February 2002 following a chest X-ray. Following his November 2005 thoracic scan Mr Preston was told he had asbestosis. Mr Nicol makes the point that if the defendant's own expert was saying that then there was little prospect of them successfully contending that this claim was statute barred. Moreover, Dr Hind's opinion was simply that he had developed pulmonary fibrosis, but in his view that would not represent asbestosis as his occupational exposure to asbestos was not of sufficient duration and intensity to put him at risk of developing that condition.

The judge found in this respect, at paragraphs 51 and 52, as follows:

I did not understand Mr Nussey to challenge these findings. He accepts that the phrase as it appears in the GP's reports of "asbestosis [GMS] review" indicates a review as to the possibility of asbestosis being the condition from which he was suffering. He accepts that no radiological evidence was available to the GP or indeed to Dr Marshall when undertaking their investigations which could have shown the existence of asbestosis because asbestosis may be so mild as not to show on an X-ray. It needed the CT scan to come to a definitive conclusion, and that conclusion was first reached by Dr Marshall in November/December 2005. In my judgment it seems plain that the first diagnosis of asbestosis was made then in 2005; it was not made in February 2002. The GP had no cause to find anything but a possibility of asbestosis.

I move to consider what the claimant was told in February 2002. The Recorder had summarised his evidence in paragraphs 20-25 of his judgment. He had made four statements, the first three being witness statements or statements prepared for the purpose of his claim against his employers, and the last was a statement for this action. In the first date of January 2005 he made no reference to any dates when he was told or knew that he had pleural plaques or asbestos or could make a claim in respect of personal injury. The second statement was in the form of a questionnaire that was answered by the claimant. He was asked (page 74):

The answer is in his own hand; it was this:

The next question was:

Answer, again in his own hand:

The third statement was sent to Mr Preston in draft for his approval. We see this at page 78 of our bundle, in which this appears:

Then there is a sentence that reads as follows:

It was only in the statement prepared for this action that we see something different. In paragraph 2 of that statement, dated 12 April 2010, Mr Preston says:

The judge heard oral evidence, and he said of that in paragraph 25 of his judgment:

We have been taken to that transcript. In it Mr Preston is answering the question put to him in his evidence in chief when he referred to having had the X-ray. Mr Nussey then put to him that it was a leading question it does not really matter put to him:

“Mr Nussey: And you were told of the pleural plaques by your GP.

Mr Preston: I certainly was yes. […]

Mr Nussey: And then if we just move on to the witness statements in this action 121, did you… sorry, can you remember now, what you were told you had in 2002?

Mr Preston: Had…yes, the results of the x-rays he said I had pleural plaques and it was, I could make… I ought to make some sort of legal representation to somebody.

Mr Nussey: Thank you. "

Mr Nicol then cross-examined about the visit to the GP. He asked, again 18.16 paragraph 116:

Unfortunately the Recorder did not make any clear finding on what the claimant was told by his general practitioner in February 2002. Mr Nussey is, however, driven to accept that the general practitioner could only have advised that it was possible that he was suffering from asbestosis; he accepts that if it required that the claimant had actually to know he was suffering from asbestosis that he did not actually require that knowledge until December 2005. He also accepts that if it is right in law that time runs from the date of the actual knowledge, the appeal fails.

Having found in paragraph 3 that the requisite knowledge that the claimant needed to have was that he had asbestosis, the Recorder's conclusions set out in paragraphs 57 and 58 was that he did not have the requisite knowledge until 1 December 2005; it followed that the defendants were not negligent in failing to issue the original proceedings within three years of 20 February in 2002.

The appellant's case. Mr Nussey draws attention to Lord Hoffman's approval in Rothwell of a passage in the judgment of Smith LJ in the Court of Appeal (see paragraph 20 of Rothwell). Smith LJ also found support for the aggregation theory in Section 32A of the Supreme Court Act 1981 to which I have already referred. She said at 1479 para. 133:

That leads Mr Nussey to submit in his written argument that not only had limitation begin to run against the claimant in respect of the pleural plaques but also in respect of all other impersonal injury consequences, which included specifically the risk of developing asbestosis and/or the plaques that it had already so developed. I reject that argument. As Lord Hoffman observed in paragraph 22 of his speech:

So it seems to me the fallacy in this argument is that knowledge of pleural plaques does not constitute knowledge of any personal injury claim which would make it imperative that he sue for all other possible consequences. If all that was known in February 2002 was that he had developed pleural plaques he had no cause of action upon which he could tack on the possibility that asbestosis would develop. Lord Hope makes the position clear in paragraph 50 of his speech in Rothwell:

“I am not attracted by the other reasons of policy that led the majority in the Court of Appeal to the conclusion that it was undesirable that the development of pleural plaques should give rise to a cause of action”

Paragraph 67:

Mr Nussey points out that not only had pleural plaques been identified by X-ray but that the GP had also detected bibasel crepitations which he submits are signs of the existence of asbestosis. There was, however, no evidence that he should understand that crepitations indicated the presence of asbestosis as opposed merely indicate the possibility that the disease had already developed. The Recorder did not accept this argument; he found that the first diagnosis of asbestosis was made by Dr Marshall. Dr Marshall had reviewed the same X-ray seen by the GP and could only make the diagnosis of possible early asbestosis. He considered the findings of bilateral crepitations in the lung bases suggested only "that there may be underlying mild asbestosis". In his considered opinion the CT scan was necessary to establish whether or not that was so. The general practitioner did not have the benefit of that CT scan; it was only the scan that enabled Dr Marshall to find the mild underlying asbestosis. The Recorder was therefore perfectly entitled, it seems to me, to reach the conclusion, as he did, that the first diagnosis of asbestosis was made known to the claimant by Dr Marshall's report of 1 December 2005.

Mr Nussey then submits that the existence of the pleural plaques signalled the presence in the lungs pleura of asbestos fibre which may independently cause asbestosis. As a result he submits the claimant must be treated as having the requisite knowledge in accordance with the third proposition enunciated by Brooke LJ in Spargo v North Essex District Health Authority [1997] PIQR 235. The issue there was whether he had taken all reasonable steps to obtain expert evidence so as to be fixed with constructive knowledge for the purposes of Section 14.3. Brooke LJ said at page 242:

In my judgment, having been told only that she had developed pleural plaques and that there was a possibility she had asbestosis does not make it reasonable for her to begin to investigate whether or not she has a case against the defendant. On the facts in this case Mr Preston falls within paragraph 4 of Brooke LJ's judgment, and paragraph 3 inasmuch as he comes within the last of the several categories identified by Brooke LJ. He will not have requisite knowledge if his state of mind is such that he thought his condition was capable of being attributed to the act or remission alleged to constitute negligence, but he was not sure about it and needed to check with an expert before he could be properly said to know that it was. Mr Preston simply did not have the requisite knowledge.

On the diagnosis that was made in February 2002 Mr Preston had suffered no actionable injuries: that has to be understood in the light of Rothwell. That asbestosis may develop is nothing to the point. The test was set up by Lord Hoffman in A v Hoare [2008] UKHL 6, [2008] 1 AC 804:

In my judgment the claimant, with the knowledge he had in February 2002, could not have considered the injury sufficiently serious to justify his instituting proceedings and no knowledge should be imputed to him that he was already the victim of asbestos. Mr Nussey submits that to require the potential claimant like Mr Preston to make further inquiries is to serve the purpose underlying Section 14, namely to avoid delay in bringing claims. Since it is, he submits, self evident that if one suffers pleural plaques and has asbestos fibres in the lungs then one cannot sit back and do nothing; he must take all reasonable steps to investigate. I cannot accept that submission. Section 14 imputes knowledge that a person shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain and where it is appropriate to act on that advice (see Section 14.3 itself). That is exactly what Mr Preston did.

So in my judgment the Recorder was correct to rule in paragraph 55(3) that the requisite knowledge the claimant needed to have was that he had asbestosis, since he did not have that knowledge in February 2002 but only acquired it in December 2005. The claim he brought cannot be said to be out of time; he could not have brought the claim before he had knowledge of the facts which supported a proper course of action, and here the injury which would entitle him to damages is his suffering asbestosis. Pleural plaques are not enough, nor is the possibility of asbestosis. In my judgment this appeal must be dismissed.

I agree

I also agree