We’re jamming

Middlesborough office won a trial on the issue of an absence of a proper risk assessment for procedures to deal with the inevitable occurrence of jams of cardboard boxes in machines where the claimant injured his hand retrieving some jammed cardboard.

Ainslie -v- SCA Packaging, HH Judge MJ Taylor, 5 May 2005.

Practice and Procedure

Limitation: discretion granted in asbestos case

The claimant’s husband died of mesothelioma in May 1991. There was evidence from another employer that the deceased had come into contact with asbestos after girders and roof of an aircraft hanger had been sprayed with the substance. It was not until 1995 that the claimant was informed that the deceased had been exposed to asbestos while employed by the defendants. Proceedings were not commenced until May 2004. Her reason for the delay was because she thought by 1995 that it was too late to bring her claim, and that she had received no clear advice that her claim could still be pursued. She also argued that it was highly unlikely that the delay in beginning proceedings would have any effect on the cogency of the evidence available to the employers.

In granting the widow discretion, the judge said that she had a good reason for her delay in commencing proceedings.

She had been unaware of her legal rights and her solicitors had failed to inform her that she had a good claim against the defendants and that she could, in 1995, have overcome any limitation defence as her claim was then still within the primary limitation period. The employers had not been prejudiced in any material way in investigating the claim or obtaining evidence.

Regarding the widow’s financial position from late 1995 onwards, her absence of confidence in the success of her claim, and the financial demands from her solicitors at that time, she had acted promptly and reasonably within the meaning of Section 33 in the way in which she handled the claim. She had taken reasonable steps to obtain legal advice when there was information available to her that indicated that she might have a claim.

The presence of a Conditional Fee Agreement constituted a matter of prejudice to the employers as, if the claim had been brought in the 1990s, she would not have been able to obtain the benefit of a Conditional Fee Agreement, but in conducting a balancing exercise she was able to discharge the heavy burden of showing that it was equitable to disallow the limitation period.

Smith -v- Ministry of Defence QBD 18 April 2005