Fatal Accidents and Limitation
Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB)
Introduction
In Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB), Master Cook considered whether a Claimant could rely on Section 33 of the Limitation Act 1980 in a fatal accident claim where the limitation period had expired prior to the deceased’s death.
The Facts
Karen Shaw was widowed following the death of her husband from stage IV metastatic melanoma on 9 January 2014. She was the executor of his estate and sole dependant pursuant to the Fatal Accidents Act 1976. She brought a claim against the Defendant, a Consultant Pathologist. The Defendant reported in October 2007 that cell samples taken from Mr Shaw’s back were benign, and on that basis, he was discharged without further treatment. However, following further investigation in 2009, the 2007 cell samples were re-examined and it was confirmed that malignancy was present in those 2007 samples.
The Claimant first instructed solicitors in November 2014 but despite a claim form being issued, and the Defendant receiving a letter of claim on 18 March 2017, the claim was never served. Later in 2017 the Defendant’s representatives were informed that the Claimant’s solicitors were no longer instructed and had closed their file.
There was a subsequent attempt by the Claimant to pursue her former solicitors for their failure, in 2017, to pursue the claim against the Defendant. The parties agreed that the Claimant’s former solicitors would indemnify her against the costs of pursuing an out of time claim against the Defendant. A second letter of claim was sent to the Defendant on 12 April 2022 and proceedings were issued on 10 August 2022.
The Issues:
At the preliminary hearing there were two key issues for Master Cook to determine:
- Whether there is an absolute bar to the application of s.33 of the Limitation Act 1980 where the limitation period expires prior to the deceased’s death;
- If not, whether to extend limitation under s.33 of the Limitation Act 1980 on the facts of this particular case.
Issue 1: The appropriate application of the Limitation Act 1980 in claims under the Fatal Accidents Act 1976:
Whilst there was a dispute between the parties as to the date of knowledge, and whether the primary limitation period expired before or after Mr Shaw’s death, Master Cook began by considering the appropriate application of the Limitation Act 1980 if the limitation period had expired before Mr Shaw’s death, expressing “some surprise that this issue had not been judicially considered” [47].
Relying on s.1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and ss.11(5) and 12(1) of the Limitation Act 1980, the Defendant argued that the primary three year limitation period had expired before Mr Shaw’s death, that the claim was therefore statute barred before this death, and that the Claimant could not make an application under s.33 of the Limitation Act 1980 to disapply the primary limitation period [13,14].
The Defendant relied upon the commentary in Kemp & Kemp at 3-010 which states:
“…..if the deceased failed to sue within his own limitation period then no Fatal Accidents Act claim may be pursued, and there is no power to make a retrospective s.33 application to disapply the limitation period once the victim has died: s.12(1).” [44]
The Claimant argued that there was no bar to the use of s.33 of the Limitation Act 1980 even if the deceased died more than three years prior to the expiry of the limitation period [18]. The Claimant relied on the commentary at 31-70 of Clerk & Lindsell on Torts which provides that:
“……..although the possibility that the deceased could have invoked the court’s s.33 discretion is disregarded when determining whether his cause of action was statute-barred, the claimants in a Fatal Accidents Act claim may ask the court to exercise its discretion under s.33 of the Limitation Act 1980 and override the limitation period which would have barred the deceased’s claim, and hence bars theirs. This is provided for by s.33.” [46].
Master Cook rejected the Defendant’s position, finding that there was no absolute bar to the application of s.33 of the Limitation Act 1980. Master Cook found that the commentary in Kemp & Kemp at 3-010 “appears to be misleading” [51]. He considered ss.12(1) and 33(2) of the Limitation Act 1980 together and found that in a fatal accident case where an individual dies after the primary limitation period has expired, the only option open to the personal representative is to commence proceedings and ask the court to disapply the limitation period under s.33 [48]. S.33(2) of the Limitation Act 1980 provides that the court may disapply s.12(1) where the reason the injured person could not maintain an action was because of the time limit provided by s.11(4).
Issue 2: Extension of the limitation period under s.33 Limitation Act 1980:
In any event, turning to the application of the facts to this case, Master Cook found that the Claimant and her husband’s date of knowledge under s.14 of the Limitation Act 1980 was June 2013, when they both became aware that Mr Shaw’s condition was serious and terminal [53], and the cause of action remained vested in Mr Shaw at the time of his death on 9 January 2014. Therefore, the primary limitation period expired on 9 January 2017 and the current proceedings were 5 ½ years out of time.
Master Cook then considered whether the limitation period should be extended, with reference to the relevant principles set out in Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 1992 [54] and the s.33(3) criteria. He highlighted in particular that:
- The delay of 5 and a half years was in no way the responsibility of the Claimant. She took reasonable steps to instruct what she believed were competent solicitors [56, 60];
- Whilst the Defendant asserted that she had no recollection of the relevant events which occurred over 15 years ago, it was difficult to understand how the Defendant’s recollection would be relevant as the case would turn on the interpretation of the sample in October 2007. That would be addressed by independent expert evidence [61, 63];
- There were no relevant conduct issues, nor was disability a relevant issue [65, 66];
- The Defendant made points which were “not insubstantial”, namely that this was a second action in circumstances where the Defendant had been told that the first case would not be pursued and where the Claimant had an arguable case of professional negligence against her solicitors [70];
- Nonetheless, there was no reason to visit any of the faults of her lawyers on the Claimant [72], nor could he be satisfied that that Claimant’s claim against her former solicitors would succeed [72]. Even if it did succeed it would result in an award of less damages than if she were successful against the Defendant;
- There would be clear prejudice to the Claimant should the court refuse to exercise its discretion under s.33 of the Limitation Act 1980. There was no alternative remedy should the Claimant be barred from bringing the claim and the claim could be described as strong (on the basis of the contemporaneous histology and supportive independent expert evidence), such that the prejudice to the Defendant was diminished [75];
- He was not satisfied that the Defendant had provided any evidence to demonstrate that she was prejudiced in her ability to defend the claim. She could give direct evidence regarding her usual practice when reviewing cell samples, could review the 2007 samples (which were still available), and he doubted whether, even if the claim was brought in the relevant limitation period, the Defendant would have had a clear recollection of this particular cell sample review given the hundreds, if not thousands, of reviews that she carried out in the intervening years [77].
Considering all those observations, Master Cook concluded that any prejudice to the Defendant was “more than outweighed” by that to the Claimant and a fair trial could still take place with substantially the same evidence as would have been available had the proceedings been served within the limitation period [78]. He therefore directed that ss.11 and 12 of the Limitation Act 1980 would not apply to this claim.
Shahram Sharghy of 1 Crown Office Row appeared for the Claimant in this case. He did not contribute to this article.