Medical Law, Personal Injury, Other Areas of Law
Rare s 33 success for defendants

Cynical defendant lawyers regard applications under s 33 of the Limitation Act to extend time for bringing personal injury proceedings as invariably going the claimants’ way.  Some see it as effectively a statutory abolition of the limitation period.   


However, the High Court has this week refused an extension for a claimant with lung cancer allegedly caused by his historic work with asbestos at Tilbury docks in the 1950s and 1960s: see Collins v Sec of State for Business, Skills & Innovation [2013] EWHC 1117 (QB).


The claimant was diagnosed in 2002 and told he had only months to live.  Happily, he responded well to treatment and thought little more about any link with his ancient work history until he saw a solicitor’s newspaper advert in 2009.  The solicitors obtained reports by April 2010 but did not commence proceedings until 2012.


The judge, Nicol J, decided that it was understandable that the claimant did not focus on causation of his illness in 2002 when he thought he would die.  But once he recovered, the claimant should have applied his mind by around 2003, and he was fixed with deemed knowledge from that time onwards. 


The next 6 years of inactivity (to 2009) was caused by the fact that, despite this “deemed” knowledge, he was actually ignorant of any right to claim.  So s 33 might nevertheless have saved him had he got on and issued proceedings shortly after instructing solicitors in 2009 or 2010 when reports were available.  But the last 2 years of delay could be relied upon by the defendants in looking to all the prejudice they faced. 


Coupled with this was the fact that the claimant’s claim on liability and causation was not strong, and the contemporaneous records did not assist, while the claimant’s own memory of events up to 66 years ago was poor.  Finally, the value of the claim was relatively modest, at around £50,000.  Accordingly, the claim was not permitted to continue.






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