Maynard v Public Services Committee (Jersey)

CourtCourt of Appeal
JudgeLe Quesne, Southwell and Smith, JJ.A.:
Judgment Date11 December 1996
Date11 December 1996
Le Quesne, Southwell and Smith, JJ.A.:

S.C.K. Pallot, Crown Advocate, for the defendant-appellant;

D.F. Le Quesne for the plaintiff-respondent.

Cases cited:

(1) Anns v. Merton London B.C., [1978] A.C. 728; [1977] 2 All E.R. 492; [1977] J.P.L. 514; (1977), 75 L.G.R. 555; 243 E.G. 523; 121 Sol. Jo. 377.

(2) Cartledge v. E. Jopling & Sons Ltd., [1963] A.C. 758; [1963] 1 All E.R. 341; [1963] 1 Lloyd's Rep. 1; (1963), 107 Sol. Jo. 73, considered.

(3) D. & F. Estates Ltd. v. Church Commrs., [1989] A.C. 177; [1988] 2 All E.R. 992; [1988] 2 E.G.L.R. 263; (1988), 15 Con. L.R. 35; 41 BLR 1; 132 Sol. Jo. 1092.

(4) D'Allain v. De Gruchy, Royal Ct. (1890), 214 Ex. 196; 1889-93 T.D. 50, unreported.

(5) Huelin v. Luce, Royal Ct. (1939), 240 Ex. 477, unreported, considered.

(6) Invercargill C.C. v. Hamlin, [1966] A.C. 624; [1996] 1 All E.R. 756; [1996] 1 N.Z.L.R. 513.

(7) Kamloops (City) v. Neilsen (1984), 1 Const. L.J. 207; [1984] 5 W.W.R. 1; [1984] 2 S.C.R. 2; 10 D.L.R. (4th) 641; 54 N.R. 1; 66 B.C.L.R. 273; 29 C.C.L.T. 97; 26 M.P.L.R. 81.

(8) M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; (1992), 96 D.L.R. (4th) 289; 142 N.R. 321.

(9) Minories Fin. Ltd. v. Arya Holdings Ltd., 1994 JLR 149, considered.

(10) Murphy v. Brentwood D.C., [1991] 1 A.C. 398; [1990] 2 All E.R. 908; [1990] 2 Lloyd's Rep. 467; (1990), 21 Con. L.R. 1; 6 Const. L.J. 304; 50 BLR 1; 89 L.G.R. 24; 3 Admin. L.R. 37; 22 H.L.R. 502; 134 Sol. Jo. 1076.

(11) Picot (T.A.) (C.I.) Ltd. v. Crills, 1995 JLR 33.

(12) Pirelli Gen. Cable Works Ltd. v. Oscar Faber & Partners, [1983] 2 A.C. 1; [1983] 1 All E.R. 65; (1983), 127 Sol. Jo. 16.

(13) Ross v. Ross, Royal Ct. (1980), Ex. 147, unreported, considered.

(14) Searle (G.D.) & Co. v. Gunn, [1996] 2 N.Z.L.R. 129, considered.

(15) Vaudin v. Hamon, [1974] A.C. 569 ([1973] UKPC 16); (1973), 117 Sol. Jo. 601, considered.

Additional cases cited by counsel:

Bell v. Heating & Ventilation Engr. Co. Ltd., 1985-86 JLR 241.

Church (Charles) (Spitfires) Ltd. v. Aviation (Jersey) Ltd., 1993 JLR 93.

de Carteret v. Applegate, 1985-86 JLR 236.

Foster v. Att. Gen., 1992 JLR 6.

Knight v. Le Gallais Real Estates Ltd., 1952 J.J. 19.

Letang v. Cooper, [1964] 2 All E.R. 929.

Scarfe v. Walton, 1964 J.J. 387.

Smith v. Harvey, Guernsey Court of Appeal, May 14th, 1981, unreported.

Legislation construed:

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, art. 2: The relevant terms of this article are set out at page 348, lines 39-45).

Texts cited:

Baudry-Lacantinerie, 1 Prcis de Droit Civil, 11th ed., paras. 1449-1452, at 833-835 (1912).

Brault, Godefroy & d'Aviron, 2 Commentaires sur la Cotume de Normandie, at 481 (1776).

Buy, Prescriptions de courte dure et suspension de la prescription, section 2833, paras. 1-31 (1977).

Carey, Essai sur les Institutions, Lois et Cotumes de l'Isle de Guernsey, at 207 (1889).

Dalloz, Rpertoire, vol. 36, Prescription Civile, para. 738, at 218.

Dunod, Trait des Prescriptions, at 103-112; at 155-165 (1810 ed.).

Le Geyt, Privilges, Loix & Coustumes de l'Isle de Jersey, arts. 1-14, at 63-65 (1953).

Le Gros, Droit Cotumier du Jersey, at 419-422 (1943).

Le Masurier, Droit de l'Isle de Jersey, at 28-42 (1956).

Le Tourneau, Responsabilit Civile, 3rd ed., at 305 (1982).

Mazeaud & Tunc, Responsabilit Civile, 6th ed. (1965).

Merlin, Rpertoire de Jurisprudence, 4th ed., vol. 9, at 541-543 (1813).

Planiol & Ripert, Treatise on the Civil Law, transl. Louisiana State Law Institute, 11th ed., vol. 2, paras. 677-683, at 367-370 (1939); 12th ed., vol. 1, paras. 2697-2705, at 593-598 (1939).

Poingdestre, Les Lois et Coutumes de l'Isle de Jersey, at 48-54; at 63-66 (1928).

Pothier, Trait des Obligations, vol. 2, paras. 676-687, at 187-199 (1821 ed.).

Terrien, Commentaires du Droict Civil, at 316-321; at 331-332; at 334-338 (1578 ed.).

Limitation of Actionsrunning of timesuspension of limitation periodlatent damageprescription suspended against plaintiff with latent injury of which could not know, e.g. asbestosisalthough mere ignorance of condition insufficient, may be part of impediment leading to operation of maxim contra non valentem agere nulla currit praescriptiomaxim applies to both contract and tort actions

Civil Proceduretrial of preliminary issuefactors to be consideredpreferable to avoid hearing preliminary issue of law prior to main hearing since likely to waste time and costs

The plaintiff-respondent brought an action in the Royal Court for damages for the defendant-appellant's alleged failure to protect him from exposure to hazardous waste.

The plaintiff, who was employed by the defendant Committee at a waste disposal plant, alleged that during his employment he was exposed to waste material containing asbestos from which the defendant should have provided adequate protection. Many years after leaving this employment, the plaintiff was diagnosed as suffering from asbestosis and he subsequently brought an action in both contract and tort for damages.

The Royal Court (Le Cras, Lieutenant Bailiff) heard the question whether the plaintiff's action was prescribed as a preliminary issue of law, proceeding on the assumption that the facts were as alleged by the plaintiff. The court held, inter alia, that the plaintiff's cause of action in tort accrued on the first date on which he could properly be awarded damages for the harm done, regardless of whether at that time he knew or could have known about it; however, the plaintiff's action was not prescribed because under the Jersey cotume, time did not run against a person who was incapable of bringing an action, by virtue of the maxim contra non valentem agere nulla currit praescriptio, which applied in the present case to suspend prescription against the plaintiff, since he had been legitimately ignorant of his condition and could not therefore have brought his action within the limitation period. These proceedings are reported at 1995 JLR 65.

The defendant appealed against this decision and the plaintiff cross-appealed. The defendant submitted, inter alia, that (a) the plaintiff's cause of action had accrued when the alleged injury was originally received during his employment and the plaintiff's action was therefore prescribed; and (b) prescription had not been suspended because the maxim contra non valentem agere nulla currit praescriptio applied only to the specific instances of inability to pursue one's legal rights mentioned in the customary sources, which did not include latent illness; the maxim could not be said to apply generally to all those who were ignorant of the existence of their causes of action, such ignorance on its own not amounting to an "empchement de fait," or factual impossibility which prevented a plaintiff from pursuing his legal rights, and any injustice caused to the plaintiff by the lack of a legal remedy was curable only by legislation.

The plaintiff submitted in reply, inter alia, that (a) it was unreasonable to hold that his cause of action accrued before he could possibly have known of his illness; however, (b) the court had properly held that prescription had been suspended by virtue of the maxim contra non valentem agere nulla currit praescriptio, which applied to anyone who, without negligence on his part, was ignorant of his cause of action, such ignorance amounting to an "empchement de fait."

The court also considered the propriety of the procedure adopted by the Royal Court in the present case, namely, the consideration of the question as a preliminary issue of law on the basis of hypothetical facts the truth of which had yet to be established.

Held, dismissing the defendant's appeal and making no finding on the cross-appeal:

(1) Prescription would not run against the plaintiff (or indeed a potential plaintiff) if he could show at trial that he had been prevented from pursuing his legal rights by an empchement de fait, or practical impossibility, under the maxim contra non valentem agere nulla currit praescriptio, which clearly applied to actions both in contract and in tort. Although ignorance of the necessary facts was alone insufficient to invoke the maxim, it could be a part of the necessary impediment, which in modern conditions could arise from a variety of circumstances. In the present case, the plaintiff would have to show that it would have been impossible for him to discover his illness any earlier, e.g. if he had suffered no obvious symptoms of asbestosis and had had no reason to seek medical examination (page 351, lines 26-35; page 354, lines 21-31; page 335, line 26 - page 356, line 10).

(2) In the light of the above, it was unnecessary to decide when the plaintiff's cause of action accrued and whether it could accrue without the plaintiff's knowing or having the means of knowing about his illness. The trial could now take place to determine the facts relevant to the suspension of prescription. However, the procedure adopted in the present case, namely, the hearing of the issues of law as a preliminary matter, was likely to increase the costs and the time required to hear cases and it would be preferable for the Royal Court to hear all the relevant issues together in future cases (page 359, line 25 - page 360, line 19).

SOUTHWELL, J.A., delivering the judgment of the court: In this action, Mr. Frank James Maynard sues the States of Jersey Public Services Committee (formerly the States of Jersey Resources Recovery Board), to which we will refer as "the States," for damages for personal injuries including asbestosis alleged to have been caused by the conditions in which Mr. Maynard was required to work when employed by the States in 1978-1979.

In his Order of Justice, Mr. Maynard alleges the following facts:

"1. At all material times the plaintiff was employed by the defendant.

2.(a) During the period 1978-1979 the plaintiff was employed by the defendant for about six or seven months as a foreloader...

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