Maynard v Public Services Committee

JurisdictionJersey
CourtRoyal Court
JudgeLe Cras, Lieutenant Bailiff:
Judgment Date17 March 1995
Date17 March 1995
ROYAL COURT
Le Cras, Lieutenant Bailiff:

D.F. Le Quesne for the plaintiff;

S.C.K. Pallot for the defendant.

Cases cited:

(1) 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.

(2) Huelin v. Luce (1939), 240 Ex. 477, distinguished.

(3) 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, considered.

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

(5) Smith v. Harvey, Guernsey Court of Appeal, May 14th, 1981, unreported, considered.

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

Additional cases cited by counsel:

Backhouse v. Bonomi (1861), 11 E.R. 825.

Battley v. Faulkner (1820), 106 E.R. 668.

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

Gibbs v. Guild (1882), 9 Q.B.D. 59.

Howell v. Young (1826), 108 E.R. 97.

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

Lynn v. Bamber, [1930] 2 K.B. 72.

Moore (D.W.) & Co. Ltd. v. Ferrier, [1988] 1 All E.R. 400.

Watson v. Priddy, 1977 J.J. 145.

Legislation construed:

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, art. 2: The relevant terms of this article are set out at page 69, lines 8-12.

Limitation Act 1939 (2 & 3 Geo. V, c.21), s.2(1): The relevant terms of this sub-section are set out at page 69, lines 15-24.

Texts cited:

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

Bérault, Godefroy & d'Aviron, Commentaires sur la Coutume de Normandie, vol. 2, at 481 (1776).

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

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

Dunod, Traité des Prescriptions, at 105-107 (1810 ed.).

Halsbury's Laws of England, 4th ed., vol. 28, para. 662, at 298.

Le Geyt, Privilèges, Loix & Coustumes de l'Ile de Jersey, arts. 13 and 14, at 65 (1953).

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

Planiol & Ripert, Treatise on the Civil Law, transl. Louisiana State Law Institute, 12th ed., vol. 1, paras. 2699-2701, at 594-595; para. 2705, at 598 (1939).

Poingdestre, Les Lois et Coutumes de l'Ile de Jersey, at 48-52 (1928).

Pothier, Traité des Obligations, vol. 2, paras. 676, 677 and 680, at 187-192; para. 684, at 195-196 (1821 ed.).

Terrien, Commentaires du Droict Civil, at 331-332 (1578 ed.).

Limitation of Actions—tort actions—start of prescription period—time runs from first date on which plaintiff could be awarded damages, even though did not and could not know of latent injury

Limitation of Actions—contract actions—start of prescription period—time runs from date of breach, even though plaintiff did not and could not know of latent injury

Limitation of Actions—running of time—suspension of prescription period—latent damage—maxim non valenti agere non currit praescriptio applies in Jersey—prescription suspended against person with latent physical injury of which did not and could not know, e.g. asbestosis

The plaintiff brought an action against the defendant for damages for its alleged failure to protect him from exposure to hazardous waste.

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

On the preliminary question whether his action was prescribed, the plaintiff submitted that (a) in both contract and tort his cause of action arose when he first suffered harm, which could not have been before he became aware of his disease because before then it would have been impossible for him to know of and seek a remedy for it; (b) the purpose of prescription was to punish negligence in the bringing of actions, of which he had not been guilty and by the customary law of Jersey the court could suspend prescription to give equitable relief in an appropriate case such as the instant one; and (c) the customary sources in the Island described various situations illustrating the maxim non valenti agere non currit praescriptio, by which prescription could be suspended, for example, if a potential plaintiff were travelling abroad and, in the 17th and 18th centuries in which the coûtume arose, was accordingly physically unable to know that he had a reason to bring an action to remedy a wrong committed against him; the common thread of those situations was that the plaintiff was for some legitimate reason ignorant of his cause of action and this, in modern circumstances, should be taken to include a person who had a latent illness of which he was not and could not be aware.

The defendant submitted in reply that (a) the plaintiff's cause of action in tort arose when a judge could first properly award him damages for his injury, i.e. when the asbestosis was first caused during his employment and by art. 2 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960 (by which the prescription period for an action based on tort was three years), his action was now prescribed; similarly, his action in contract was also now prescribed since the cause of action arose at the date of any breach that had been committed and it was irrelevant that the harm was not known of at the time; (b) the purpose of prescription was to provide certainty by preventing litigation long after the subject-matter of the dispute first arose and time having started to run, it would be unjust for prescription to be suspended to meet individual cases; and (c) whilst the customary law once recognized exceptions to this rule in particular circumstances, such as legitimate absence or mental incapacity, there was no general rule whereby ignorance of one's cause of action per se caused prescription to be suspended and such a rule could not be inferred now from the coûtume; in particular, it was clear from Guernsey case law that there was no such general rule.

Held, giving the following ruling:

(1) The plaintiff's cause of action in tort accrued on the first date on which a judge could properly award him damages for the harm that had been done, whether or not that harm was or could have been known about at that time. The plaintiff's cause of action in contract accrued on that date on which a breach of contract, if any, was committed (page 77, lines 33-45; page 78, lines 25-28).

(2) Under the coûtume as applied in Jersey (which was not necessarily the same as that in Guernsey), the maxim non valenti agere non currit praescriptio prevented a period of prescription from running against a plaintiff who was under an "empêchement de fait" or impediment preventing him from bringing an action in time. In the conditions of the 17th and 18th centuries in which this rule arose, such an impediment could be caused by, for example, the plaintiff's absence from Jersey preventing him from knowing the facts which gave rise to his cause of action, or by any other legitimate reason for his being ignorant of the relevant facts. In modern conditions, the maxim applied to a plaintiff who was ignorant of a latent physical injury, such as asbestosis, without any negligence on his part; thus in such a case prescription was suspended until his legitimate ignorance ceased or ought to cease. Whether this point had been reached in the present case was a matter to be determined at trial, as was the question of when the plaintiff's cause of action arose (page 78, lines 37-42; page 100, line 20 - page 101, line 21; page 101, line 44 - page 102, line 6).

LE CRAS, LIEUTENANT BAILIFF: This is a preliminary hearing concerning points of law and for the purpose, and only for the purpose, of hearing these preliminary points the court was informed that it might treat certain facts as being agreed.

As outlined by Mr. Pallot for the Committee, these are that the plaintiff was employed by the defendant Committee in 1978 and 1979 as a freeloader driver operating a loading machine at the sorting shed at La Collette. The job involved pushing refuse into a sorting shed and using a loading machine to sort and turn refuse into different heaps.

The plaintiff's employment terminated in 1979. In May 1993, he was informed by his doctor that he was suffering the effects of asbestosis. The action asserts that the illness is attributable to the failure of the defendant Committee to protect the plaintiff adequately from exposure to asbestosrelated waste. It is common ground that the effects of such exposure may appear or, rather, become apparent many years later.

The claim is brought in both contract and tort. No claim of fraud or deception is brought against the Committee, which denies negligence and has pleaded prescription. It is as a result of this plea that the points of law have arisen. There are two of them and the purpose of this preliminary hearing is to obtain a ruling on these two separate but interconnected points. The first is to define the date upon which the cause of action accrues. The second is whether, in a case such as this, there is or may be any suspension of the period of limitation in the absence of knowledge and where no fraud or deception is alleged against the defendant.

The defendant contends that the cause of action arose in tort when it reached the stage, whether then known or unknown, at which a judge could properly give damages for the harm that had been done; whilst in contract time runs from the breach without regard to the ensuing damage, albeit that the breach was not discovered nor the damage resulted until after the expiration of the limitation period. In...

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