LIMITATION AND THE DATE OF KNOWLEDGE: WHAT IS MEANT BY “SIGNIFICANT”?

In Summers -v- The City and County of Cardiff [2015] EWHC 3066 (QB) Mr Justice Hickinbottom considered what was meant by “significant” in s.14(1) of the Limitation Act 1980.

“The test for “significance” of injury is one of quantum alone, and does not invite consideration of the cause or nature of the injury …. But, for an injury to be “significant” for these purposes, the quantum level is low: it has been said that the test comes close to the test of seriousness of an injury for which the courts could properly award damages and thus in respect of which a cause of action in negligence accrues …. That test is essentially an illustration of the principle “de minimis non curat lex”. Thus, where an injury is any more than very minor, it will generally satisfy the test for “significance” in section 14(2)”

THE CASE

The claimant was bringing an action for a condition of the pleura caused by asbestos. Proceedings were issued in August 2014. In 2000 he had seen his doctors in relation to difficulties with his chest and “asbestosis” was recorded. The medical notes also stated “Considering claim now against employer from when he was a boilerman in Cardiff.”

KEY POINTS

  • The claimant knew he had chest problems arising, in part, from exposure to asbestos, in 2000.
  • The claimant knew he was suffering from a symptomatic asbestos-related condition from 2000 and that was sufficient to fix him with knowledge that the symptoms were significant.

THE LIMITATION ACT

The judge set out the relevant terms of the Act
  1. Section 11 of the Limitation Act 1980 applies a special time limit for the commencement of any action in respect of personal injuries, such as this. It provides, so far as relevant to this claim:
“(3) An action to which this section applies shall not be brought after the expiry of the period applicable in accordance with sub-section (4)….
(4) … [T]he period applicable is three years from –

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.”

  1. Section 14 provides, again so far as relevant to this claim:
“(1) … [I]n section 11… references to a person’s date of knowledge are references to the date in 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… or breach of duty; and

(c) the identity of the defendant; …

(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.”

THE LEGAL PRINCIPLES

The judge set out the legal principles in relation to the date of knowledge and meaning of “significant”.

  1. In relation to these provisions, the following propositions were common ground before me, and are uncontroversial.

i) The effect of section 11(4)(a) and (b) is that, where proceedings are not commenced within three years of the cause of action arising, generally the claimant has the burden of proving that he did not have the requisite knowledge until a date within the three years preceding the date of issue of proceedings (Nash v Eli Lilly & Co [1993] 1 WLR 782 at page 793H, paragraph 6).

ii) “Knowledge” in the context of section 14 does not mean know for certain: it means know with sufficient confidence reasonably to justify embarking upon steps preliminary to the institution of proceedings against those whose act or omission has caused the significant injury concerned, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence (Halford v Brookes [1991] 1 WLR 428 at page 443, approved in Dobbie v Medway Health Authority[1994] 1 WLR 1234 at page 1240B; and Nash at page 793C-D, paragraph 3). Of course, even where a particular individual has that level of confidence, he may have perfectly good reasons for not pursuing a claim and may quite reasonably decide not take steps to do so (see A v Hoare[2008] UKHL 6; [2008] 2 WLR 311 at [38] per Lord Hoffmann); but whether or not steps are in fact taken does not affect the date of knowledge.

iii) The test for “significance” of injury is one of quantum alone, and does not invite consideration of the cause or nature of the injury (Dobbie at page 1241H). But, for an injury to be “significant” for these purposes, the quantum level is low: it has been said that the test comes close to the test of seriousness of an injury for which the courts could properly award damages and thus in respect of which a cause of action in negligence accrues (Cartledge v E Jopling & Sons Limited [1963] AC 758 at 781; Rothwell v Chemical & Insulating Company Limited[2006] EWCA Civ 27; [2006] ICR 1458 at [21]). That test is essentially an illustration of the principle “de minimis non curat lex”. Thus, where an injury is any more than very minor, it will generally satisfy the test for “significance” in section 14(2).

iv) However, the House of Lords in Rothwell held that, where a breach of duty has given rise to physiological changes but the condition is symptomless, and does not presage or threaten a more serious condition, that will not satisfy the test for bringing a negligence action; nor will it, even if known, be sufficient to satisfy the knowledge test in section 14(2). The opinions were handed down in Rothwell on 26 January 2006. Prior to that, it was at least arguable that an asymptomatic condition which does not presage or threaten a more serious condition could nevertheless found a suit in negligence.

THE ISSUE: THE DATE THAT THE CLAIMANT KNEW THE INJURY WAS SIGNIFICANT

The claimant argued that the claimant thought he was suffering from nothing more than symptomless pleural plaques in 2000 and that he believed many of his symptoms arose from smoking.

THE JUDGE’S JUDGMENT ON “SIGNIFICANCE”

  1. That was a bold submission, ably put – but I am unpersuaded by it. In my judgment, the Claimant suffered from a symptomatic asbestos-related condition from 2000 – that is when his cause of action arose – and he first had knowledge that his injury was significant then. Consequently, the limitation period applicable under section 11(4) expired well before 2011.
  2. In coming to that conclusion, I have particularly taken into account the following.
i) In respect of the facts about a prospective claim of which an individual must have knowledge under section 14(1), in 2000 the Claimant knew that he had been injured, in the sense that he had suffered pleural abnormalities; and that that injury was attributable to exposure to asbestos dust whilst in the employ of the Council and as a result of its act or omission. It is therefore not in dispute that the Claimant had knowledge of all relevant facts, except (the Claimant contends) knowledge that his injury was “significant”.
ii) I respectfully agree with the joint memorandum of the experts which concluded that it would be an arid exercise to attempt to categorise the Claimant’s condition as “pleural plaques” or “diffuse pleural thickening”. Whatever label might be attached to the condition, as an injury it would be “significant” if it was (or as soon as it became) symptomatic (i.e. there were more than very minor symptoms) and would not be “significant” if it were asymptomatic.
iii) The use of medical terms in this area has changed, and become more specific, over time. In this case, the terms used by the medics contemporaneously are inconsistent and of limited value in determining whether they considered the asbestos-related condition to be symptomatic. After the 22 November 2000 consultation, Dr Jones used both of the terms “large area of pleural thickening” (letter to Dr Cooke of 24 November 2000) “sharply defined… large innocent pleural plaque” (letter to Dr Cooke of 6 December 2000). Even as late as the January 2012 MDT, the condition was talked of in terms of “pleural plaques only…”; although, by then, of course it was understood that the Claimant’s symptoms arose from something more than simple, asymptomatic pleural plaques. The position is made more complicated by the following:
a) From a clinical point of view whether a patient is suffering from pleural plaques or diffuse pleural thickening is of limited value, because neither is treatable. What matters from a clinical point of view is whether the condition is malignant (cancerous) or benign (non-cancerous). Thus, in 2012, once the Claimant’s condition was confirmed as being benign, the hospital simply discharged him – although giving him advice as to how he might pursue a claim for the symptoms that they considered resulted from the condition. “Simple” pleural plaques may therefore be used, not to differentiate the condition from diffuse pleural plaques, but rather from a malign condition.
b) Until Rothwell in 2006, asbestos-related conditions were thought to be actionable whether symptomatic or not.

c) Pleural plaques can, occasionally, be symptomatic.

iv) I accept that the medical records do not point consistently one way: for example, there is reference in the Dr Jones’ 6 December 2000 letter to the lesions being “sharply defined”, and the consultant in 2003 reported to the Claimant’s GP that he thought the symptoms of chronic breathlessness appeared to be related to his heavy smoking. Nevertheless, the contemporaneous medical records from 2000 regularly refer to something more than “pleural plaques”; and they suggest that the clinicians considered that, whilst the pleural condition was benign, there was something more than straightforward pleural plaques present. This makes it more likely that the pleural condition was symptomatic.
v) Although parts of the expert evidence suggest the Claimant might be regarded as suffering from two conditions – asymptomatic pleural plaques and symptomatic diffuse pleural thickening – their joint memorandum appears to postulate a single condition of uncertain label. The contemporaneous medical records do not suggest more than one condition. Although the thickened area of the pleura may have altered over time – for example, by engaging more with the underlying morphological structures – the physiology appears to have changed little in nature. The Claimant was told of “Christmas tree-like” projections from the “lump” at a very early stage. Furthermore, although the frequency and severity of the breathlessness and chest pains has increased over time, the nature and type of symptoms was described by the Claimant in consistent terms over the whole period. The Claimant’s condition is best considered as a single progressing condition, rather than one (symptomless) condition being overlain by a second (symptomatic) condition.
vi) In their joint memorandum, the experts do not deal with the question as to when the asbestos-related condition became symptomatic. However, in paragraph 9.10 of his report dated 17 February 2013, Dr Sinclair says;

“There is evidence of progression of Mr Summers’ diffuse pleural thickening, as demonstrated by him having a forced vital capacity of 2.95l in 2007, which by 2012 had reduced to 2.46, a reduction of approximately 500ml whilst forced expiratory volume in 1 second has reduced from 1.97l to 1.76l. The greater reduction in forced vital capacity confirms progression of diffuse pleural thickening as opposed to COPD…”.

That suggests that Dr Sinclair is of the view that the Claimant first suffered from diffuse pleural thickening by 2007 at the latest. Dr Moore-Gillon, on page 16 of his report dated 20 February 2015, did consider the onset of symptoms:

“Dating the onset of disability due to asbestos-related problems (and their associated parenchymal lung changes) is very difficult…. My general feeling is that the asbestos-related pleural change has probably progressed only extremely slowly if at all and that Mr Summers became aware of progressively worsening symptoms because of progression of his airways disease with continued smoking.”

That is far from a firm or confident view. However, the experts are agreed that the Claimant has parallel conditions involving his chest, those involving the pleura being asbestos-related and others not being caused by exposure to asbestos but rather tobacco smoke. It is common ground between the experts that the latter has progressed (and continues to progress) more quickly than the former. Dr Moore-Gillon appears to suggest the early respiratory symptoms suffered by the Claimant were a result of his asbestos-related disease, and his COPD has been responsible for a higher proportion of the more recent symptoms.

vii) Although an increase in the Claimant’s asbestos-related chest symptoms has been masked by an even greater increase in COPD-derived chest symptoms, the symptoms from which he was suffering in 2000 are characteristic of pleural thickening, they have not changed in their essential nature, and one characteristic of pleural thickening is that it is progressive.
viii) The Claimant’s own evidence is also noteworthy. As I have described, although he thought that his heavy smoking may have contributed, he considered that, from 2000, his breathlessness and chest pains were due to the asbestos-related changes to his pleura. I accept that there is no direct evidence from the Claimant, or anyone else, to the effect that he was told by the medics in 2000 that his asbestos-related condition was symptomatic – and I have explained why that may not have been at the forefront of their minds – but it is clear that, after his various consultations, the Claimant was left with the impression that his breathlessness and chest pains did derive from his pleural condition. Of course, in 2000-1 it would have been thought open to him to pursue a claim for his pleural condition even if it were symptomless. However, he said that he did not pursue a claim (and did not attend chest clinic appointments) after the negative biopsy in 2001, not because he thought that he had no asbestos-related symptoms, but because those symptoms he believed were asbestos-related did not bother him and he did not consider those symptoms (although worsening) were sufficiently debilitating to make pursuit of a claim worthwhile.
ix) In my judgment, on all the evidence, it is therefore far more likely that some of the Claimant’s breathlessness and chest pains in 2000 were caused by his pleural condition; and the Claimant’s understanding then that they were so caused was true.

Conclusion

  1. I therefore conclude that the Claimant’s date of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 was well before 18 August 2011.

  2. This claim thus fails; and I shall direct judgment be entered for the Defendant.

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