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What's the limit?

The Court of Appeal’s recent decision in Sir Robert Lloyd & Co v Hoey [2011] EWCA Civ 1060 is a very useful reference point for how the courts should approach the “date of knowledge” under Section 14 of the Limitation Act.

C had been exposed to asbestos in the course of his employment. He developed serious lung problems, caused to a large extent from pleural thickening resulting from this exposure. The exposure was before the early 80s. C’s first experienced chest symptoms in the mid 80s, which were caused by this pleural thickening. He was referred to hospital at that time. C’s cause of action accrued well before the claim was issued in 2010. D contended that C’s date of knowledge was in the mid-80s when he first experienced symptoms and had treatment.

The Court of Appeal summarized the test set out in Section 14(2) as follows:-

a) Significant:

As set out in A v Hoare [2008] 1 AC 844, the test is an “entirely impersonal standard”. Taking into account what C actually knew and any knowledge to be imputed to him under Section 14(3), the question is whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

b) Attributable:

The Court of Appeal followed the guidance in Spargo v North Essex District Health Authority [1997] 1 PIQR P235: that’s to say, it’s “a broad knowledge of the essence of the causally relevant act or omission”; attributable means “a real possibility”; C has the requisite knowledge when he has enough to make it reasonable to begin investigating whether he has a case; C won’t have the requisite knowledge if he’s “barking up the wrong tree” or the knowledge is so vague or general that he can’t be expected to know what to investigate, or if C would have to check with an expert before C could be properly said to know that it was capable of being attributed to the act or omission.

On the facts of the case, C’s doctors knew about pleural thickening in 1986 but did not consider this to be significant. C’s evidence was that he was not told about this. Although he was told there was a possibility he had developed mesothelioma, he hadn’t and that scare soon passed. C was not aware the injury was significant until much later. Further, C did not have knowledge of attributability as he was unaware of the pleural thickening.

The Court of Appeal upheld the first instance decision that the claim was brought in time and dismissed the appeal.

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