Case No: B3 / 2010 / 2778
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
MR RECORDER LODGE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE WARD
LORD JUSTICE ETHERTON
and
LORD JUSTICE PITCHFORD
Between:
Preston | Appellant |
- and - | |
BBH Solicitors | Respondent |
(DAR Transcript of
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Mr Richard Nussey (instructed by Atha & Co Solicitors) appeared on behalf of the Appellant.
Mr Andrew Nicol (instructed byRobin Simons LLp) appeared on behalf of the Respondent.
Judgment
Lord Justice Ward:
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:
"1. The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
2. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk."
That being the law, the Recorder held in paragraph 54 that:
"The requisite knowledge that the Claimant needed to have was that he had asbestosis. That he believed that pleural plaques gave him a cause of action is not, because of Rothwell, requisite knowledge. That he feared that the pleural plaques, the cough and crepitations might be indications of asbestosis does not constitute the requisite knowledge."
That, submits Mr Richard Nussey on the appellant's behalf, was the Recorder's error.
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:
"17 January 2002 Dr Deirdre Rorke
Problem: dry cough one year but worse more recently with head [GMS] cold. No previous problems with chest, stopped smoking 40 years ago, shortage of breath on exercise but able to climb two flights of stairs comfortably, no shortage of breath at rest, no chest pain, no loss of appetite, loss of weight, sinister symptoms."
The blood pressure was then recorded. Then the note:
"Chest fine, by basel crepitations, no oedema."
She advised an X-ray and to see with the result.
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:
"Pleural plaques due to asbestos. On examination few fine crepitations that are base, right base, left clear, nil else for spirometric."
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:
"[Dr Dracass again]: dry cough, patient's condition the same apart from GMS pleural plaques (inaudible) NAD chest now clear."
Another entry of the same date for him:
"Problem pleural plaques on CXR (asbestos exposure). Patient given advice on possible compensation."
That seems to be about as much as we can glean from the medical records.
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:
"This shows a normal sized heart. The lung fields are clear but there is evidence of discreet pleural plaques in both hemithoracesconsistent with those caused by previous asbestos exposure. There is otherwise no evidence of pleural thickening or pleural fusion."
He dealt with the GP's records and noted that on examination the chest showed fine bibasal crepitations. He then made his own diagnosis:
"16.1 Asbestos related pleural plaques.
16.2 Possible early asbestosis."
Dealing with asbestosis he said at 20.3:
"Although there is no evidence of asbestosis on plain chest x-ray this is not a particularly sensitive screening modality for asbestosis. His clinical examination findings of bilateral crepitations in the lung bases also his lung function defects would suggest that there may be underlying mild asbestosis. This would be borne out by a more detailed cross-sectional radiological investigations such as a CT scan."
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 scan confirms widespread bilateral pleural plaques which are mostly calcified and many of them quite florid up to 10 mm in thickness.
Between plaques there is no diffuse pleural thickening and no pleural effusions.
Additionally there are well marked changes of interstitial pulmonary fibrosis in the lower zones. This consists of patches of subpleural honeycombing and mild localised traction bronchiectasis. These findings would be consistent with asbestosis.
This therefore changes the prognosis section in 20.3 which should now read that there is evidence of asbestosis on the CT scan of the thorax which confirms the lung function deficit and suggests mild underlying asbestosis."
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 am not satisfied that on 20 February 2002 it was clear to the claimant's GP that the claimant had an asbestos-caused injury. The bibasal crepitations and cough could be symptoms of asbestosis. The presence of pleural plaques in February 2002 would then have been considered to be an injury for which compensation could be claimed. That the presence of pleural plaques could not be an actionable injury was not known until the Court of Appeal decision in Rothwell on 26 January 2006.
52. In my judgment Dr Marshall's assessment of the presence of asbestosis in paragraph 20.3 of his first report dated 11 July 2005 cannot be challenged. A CT scan needs to be before positive diagnosis of asbestosis can be made."
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):
"Can you also please note here when you first started experiencing problems with your chest and when did you realise you could make a claim for your injuries?"
The answer is in his own hand; it was this:
"A persistent cough, which did not improve led me to seek advice from my GP. GP referred me for chest X-ray at Royal South Hants hospital. The results of the X-ray in Feb 02 revealed Pleural Plaques and informed of this by GP.
Realised possible to make claim for an advert in Southern Echo October 18th 2002."
The next question was:
"Can you also say when you went to the doctor and whether he gave you any information regarding your condition.
What made you decide to claim?"
Answer, again in his own hand:
"Revealed Pleural Plaques from X-ray but no more information given by GP in Feb 02.
From information gained by contacting Free Claim IDC and from attending an advice session held by IDC in Eastleigh Hants
IDC - Industrial Diseases Claim [that is a reference I think to a claim he made for industrial diseases in fact it was rejected because the doctor there concluded he did not suffer from asbestosis]."
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:
"19. It was only a couple of years ago that I started experiencing problems with my chest. I noticed that I had a persistent cough which did not seem to improve. This led me to visit my GP, who then referred me to the Royal South Hants Hospital for a chest X-ray. This x-ray was taken in February 2002. The results revealed that I had pleural plaques and it was my GP who informed me of this however I was not aware I could claim at this point as my GP never mentioned the legal implications of having pleural plaques so I was very much in the dark."
Then there is a sentence that reads as follows:
"I first realised it was possible to claim for my condition in October 2002."
That sentence was struck out then the statement continues:
"I saw an advert in the Southern Echo in October 2002 […] and this highlighted that it was possible to claim for pleural plaques and having struck that out it reads which prompted me to contact Free Claim IDC."
And he then makes reference to having been given advice that he could make his claim.
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:
"I recall that on 20 February 2002 I attended my General Practitioner in connection with an ongoing problem, which I had been living with in my chest. These problems had been ongoing for some months previously and my Doctor had discussed the possibility that I was suffering from Pleural Plaques and Asbestosis as a result of my employment.
2. Although I can't recall any details of the discussions I had on 20 February, it is quite clear from the entries in my medical notes and records that I was advised by Dr Dracoss that following an earlier consultation on 12 February 2002 and an asbestosis review that I was advised to seek legal advice with a view to obtaining compensation for my condition."
The judge heard oral evidence, and he said of that in paragraph 25 of his judgment:
"In evidence, the Claimant said that on 20 February, 2002, he was told he had pleural plaques and should make a claim. He said that his original action had gone very quiet he was later told that there was no compensating for pleural plaques. He was sure if the diagnosis of asbestosis came before or after the CT scan in November 2005."
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:
"And when was the first time you were told that you had an industrial disease?
Mr Preston: When I visited my GP in … after…
Mr Nicol: When he told you had pleural plaques.
Mr Preston: He did.
Mr Nicol: He couldn’t tell you you had asbestosis, could he?
Mr Preston: Well he said it was, I had pleural plaques as I had been exposed to asbestosis [which I think must mean asbestos] at some time during my professional …
Mr Nicol: In fact he couldn’t…
Recorder Lodge QC: Let him finish his answers.
Mr Nicol: In fact he couldn’t tell you for sure you had pleural plaques until he’d seen the X-ray that he sent you for.
Mr Preston: Yes (inaudible).
Mr Nicol: And you saw another physician shortly thereafter didn’t you, a chest specialist?
[I omit some cross examination]
Mr Nicol: Do you recall having CT scan in November 2005?
Mr Preston: Oh yes. Yes.
Mr Nicol: It is correct to say though, it was only after that CT scan that you were advised you had asbestosis?
Mr Preston: It’s true to say that [Dr Dracass] has said that I had been exposed to asbestos, but it’s a job to say really, I don't know when that was… when [Dr Dracass] has said I’ve been exposed to asbestos, Sir, there was some wondering if I did have anything else of the complaint but it was sort of confirmed and I went to see Dr Marshall yes.
Mr Nicol: Well it wasn’t confirmed the first time you went to see Dr Marshall was it, because he said in his report and we can look at it if you like, that he thought you might have asbestosis, but he couldn’t confirm it until you’d had a CT scan.
Mr Preston: Yes I think I went for a scan after I first met him."
I need not read more.
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:
"In my view, the wording of section 32A is consistent only with the proposition that a claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. The wording of the section is not consistent with the notion that the same exposure to asbestos can and does give rise to separate torts in respect of each consequence. Because he has only one cause of action, as soon as the claimant knows that he has one personal injury consequence, he must sue for all such possible consequences. Under section 32A, he is able to defer the assessment of that part of his damages which relate to future risks, instead of having to accept them now, imperfectly assessed, as he was required to do at common law. Whether he chooses a provisional or final award is a matter for him."
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:
"It is true that if he has a cause of action, his damage must include the risks that other serious conditions might eventuate. But that does not mean that such risks are taken into account in deciding whether he has a cause of action, that is to say, whether he has suffered (and not merely may suffer) more than minimal damage.”
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:
"I would hold however that there is no cause of action because the pleural plaques in themselves do not give rise to any harmful physical effects which can be said to constitute damage and because of the absence of a direct causative link between them and the risks and the anxiety of which on their own are not actionable. I would apply the same proposition for the purposes of the limitation rules. Time has not yet begun to run against any of the claimants who may have the misfortune of developing asbestosis, asbestos related disease in the future which is actionable."
I repeat that last sentence, “time has not yet begun to run”, and it seems to me that time did not begin to run in February 2002.
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:
‘What, then, does the law require in order that actual knowledge is established?
This branch of the law is already so grossly over-loaded with reported cases, a great many of which have been shown to us or cited by Counsel, that I see no reason to add to the overload by citation from early decisions. I have considered the judgments of this Court in Halford v Brookes[1991] 1WLR 443; Nash v Eli Lilly & Co [1993] 1WLR 782; Broadley v Guy Clapham[1993] 4All ER 439; Dobbie v Medway Health Authority[1994] 1WLR 1234; Smith v Lancashire Health Authority[1995] PIQR 514; and Forbes v Wandsworth Health Authority [1996] 7MED LR175. From these decisions I draw the following principles:
(i) The knowledge required to satisfy s14(1)(b) is a broad knowledge
of the essence of the causally relevant act or omission to which the
injury is attributable;
(ii) "Attributable" in this context means "capable of being attributed to",
in the sense of being a real possibility;
(iii) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(iv) On the other hand, she will not have the requisite knowledge if she thinks she knows the act or omission she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of
being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was’.”
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:
"You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages."
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.
Lord Justice Etherton:
I agree
Lord Justice Pitchford:
I also agree
Order: Appeal dismissed