1

ICLR: Appeal Cases/1963/CARTLEDGE AND OTHERS APPELLANTS; AND E. JOPLING & SONS LTD.
RESPONDENTS. - [1963] A.C. 758
[1963] A.C. 758
[HOUSE OF LORDS.]

CARTLEDGE AND OTHERS APPELLANTS; AND E. JOPLING & SONS LTD.

RESPONDENTS.

1962 Nov. 20, 21, 22, 26, 27, 28.

LORD REID, LORD EVERSHED,
1963 Jan. 16
LORD MORRIS OF BORTH-Y-GEST, LORD HODSON and LORD PEARCE.
Limitation of Action - Negligence - Injury caused by acts outside statutory period - Injury first discovered
within statutory period [1963] A.C. 758 Page 759
When cause of action accrued - Whether damage must be ascertainable - Pneumoconiosis - Limitation Act,
1939 (2 & 3 Geo. 6, c. 21), s. 2 (1).
By section 2 (1) of the Limitation Act, 1939: "The following actions shall not be brought after the expiration of
six years from the date on which the cause of action accrued, that is to say:- (a) actions founded on ... tort ..."
By section 26: "Where, in the case of any action for which a period of limitation is prescribed by this Act,
either - (a) the action is based upon the fraud of the defendant or his agent ... or (b) the right of action is
concealed by the fraud of any such person as aforesaid, or (c) the action is for relief from the consequences
of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the
mistake ... or could with reasonable diligence have discovered it."
Workmen, while employed as steel dressers in a factory, contracted pneumoconiosis, a disease in which
slowly accruing and progressive damage may be done to a man's lungs without his knowledge. According to
the evidence, a man susceptible to pneumoconiosis who inhaled noxious dust over a period of years would
have suffered substantial injury before it could be discovered by any means known to medical science. By
writs issued on October 1, 1956, the workmen claimed from their employers damages for negligence and, or
alternatively, breaches of statutory duty causing the disease. As a result of changes at the factory, the
workmen could establish no breaches of duty by their employers making any material contribution to the
causation of the injuries to their lungs after September, 1950:Held, (1) that in such cases the cause of action accrues at the date of the loss or damage when there has
been a wrongdoing by the defendant from which loss or damage (not being insignificant) is suffered by the
plaintiff, irrespective of his knowledge of such loss or damage (post, pp. 771, 773-774, 775, 777).

Howell v. Young (1826) 5 B. & C. 259; 8 D. & R. 14, and Archer v. Catton & Co. Ltd. [1954] 1 W.L.R. 775;
[1954] 1 All E.R. 896 applied.
Urie v. Thompson (1949) 337 U.S. 163 distinguished.
(2) That as such damage to the workmen had accrued before October, 1950, their claims were statute-barred
by the effect of section 2 of the Act of 1939 and accordingly failed.
Per Lord Reid. The necessary implication from section 26 of the Act of 1939 is that, where fraud or mistake is
not involved, time begins to run, whether or not the damage could be discovered (post, p. 772).
Decision of the Court of Appeal [1962] 1 Q.B. 189; [1961] 3 W.L.R. 838; [1961] 2 All E.R. 482, C.A. affirmed.
APPEAL from the Court of Appeal (Sellers, Harman and Pearson L.JJ.).
This was an appeal by leave of the Court of Appeal from an
[1963] A.C. 758 Page 760
order of that court made on June 23, 1961, whereby it dismissed an appeal from a reserved
judgment for the defendants, E. Jopling & Sons Ltd. (now the respondents), delivered in Middlesex
on June 10, 1959, by Glyn-Jones J. in nine consolidated actions tried by him at Newcastle-uponTyne Assizes on January 19, 20, 21, 22, 23, 1959, and at Leeds Assizes on March 10, 11, 12, 13,
16, 17, 18, 19, 20, 23, 24, 1959. The plaintiffs in the actions, begun by writs issued on October 1,
1956, were Fred Hector Cartledge, Arthur Ridsdale Hepple, James Jackson Urch, William Wilfred
Paterson, Sydney Carpenter, Howard William Shovelin, Ernest Paterson, Joseph Clementson and
Charles South. After the deaths of Cartledge on June 15, 1957, and Paterson on October 15, 1959,
actions on behalf of their widows, Hannah Cartledge and Margaret Jane Paterson respectively
(each suing as administratrix of the estate of her deceased husband), were consolidated with the
other actions and were treated as if the writs in those actions were issued also on October 1, 1956.
The plaintiffs were now the appellants and appealed as assisted persons.
The claims in the actions were for damages for negligence and breach of statutory duty. The men in
question were steel dressers employed in the steel works of the respondents, who denied the
allegations of negligence and breach of duty and also pleaded the Limitation Act, 1939. Glyn-Jones
J. found breaches of statutory duty proved and assessed the damages in varying sums amounting
in all to 25,540, but held that all the claims were barred by the Act.
The facts and relevant findings, stated by Lord Pearce, were as follows: The defendants
manufactured steel castings and the original plaintiffs had for many years been employed by them
as steel dressers. In that capacity they worked in an atmosphere which could easily become laden
with dust from the particles of fractured sand or silica inevitably produced by grinding and shotblasting processes designed to remove sand from the steel when it emerged from the mould. In
breach of sections 4 and 47 of the Factories Act, 1937, the defendants failed to provide effective
ventilation from 1939, when war-time conditions created certain difficulties, until October, 1950. By
that time, partly as a result of the defective ventilation, all the plaintiffs were suffering from
pneumoconiosis; but (with three possible exceptions) they were unaware of it and had no reason to
suspect it. From 1950 onwards the defendants committed some breaches of regulation with regard
to the removal of dust
[1963] A.C. 758 Page 761

from pedestal grinders. By that date, however, a new and effective mask was being worn by the
workers and the breaches after 1950 were not of sufficient importance to produce any material
contribution to the disease of the plaintiffs. They could not, therefore, suffice to support or to
continue any cause of action. The writs were issued on October 1, 1956. Although it would have
been possible to issue the writs within six years from October, 1950, it is not suggested that the
plaintiffs were dilatory or unreasonable in failing to start proceedings earlier.
During the period between 1950 and 1955 the plaintiffs discovered on various dates that they had
pneumoconiosis in varying degrees. From 1950 onwards under a general arrangement between
employers and trade unions mobile X-ray units paid for by the defendants' trade association had
visited the defendants' steel works annually (and in the first two years twice a year) and taken
photographs of the workmen. At about the same times an independent doctor paid by the
defendants would visit and make clinical examinations. His deductions from these examinations
and from the X-ray photographs were embodied in reports, of which copies were sent to the
defendants. At a later stage in the trial most of the relevant X-ray photographs were obtained and
the doctors on both sides examined them and agreed together what deductions could properly be
made from each. These deductions did not wholly tally with the contemporary reports made by the
visiting doctor. The majority of the plaintiffs had attended for X-ray examination regularly from 1950.
Thus the trial judge was enabled to trace with some degree of accuracy the physical condition of
most of the plaintiffs from 1950 onwards and that of the remainder from a later date.
The disease was caused by the inhalation of invisible and infinitesimal particles of fragmented silica
which entered the lymphatic vessels forming part of the lung tissue. Either by their sharpness or by
some toxic action they damaged the tissue and caused minute scars. The scarred tissue was
inelastic and could not perform the functions of the unscarred tissue. As the amount of scarred
tissue increased with continued inhalation of the particles, so the efficiency of the lung tissue was
reduced. "The ordinary man in normal health," said the judge, "has when young a substantial
surplus of lung capacity upon which he need never call save in the exceptional case of severe
illness or extraordinary exertion; and until the damage is sufficient materially to diminish this surplus
capacity there may be no indication of shortness of
[1963] A.C. 758 Page 762
breath or other clinical sign or symptom of lung disease; and if during this stage a patient is
removed from exposure to these fine particles of silica, no more damage will be done, and his
condition should not further deteriorate in the absence of some complication, and it may well be
that he will never become aware or have any reason to suspect that any damage has been done to
his lungs." No treatment, however, could repair the damage that had already been done to the lung.
The disease might make a patient more vulnerable to tuberculosis, and when it got to a more
advanced state it might increase of itself without the further inhalation of particles. In any serious
case there was a reduction of the expectation of life.
Although in its earlier stages the affection of the lung could not be seen on an X-ray photograph,
there came a time when it could be detected. In all the cases (with one possible exception) the
disease had so far developed by 1950 that it would have been visible upon X-ray examination to a
sufficiently skilled eye, had such an examination been made in each case.
In one case, which sufficed for the arguments relating to all, the plaintiff, Paterson, was 44 years of
age. He had worked for the defendants from 1933 to the date of the trial. "He was first X-rayed in
1952," said the judge, "and the doctors are agreed that the X-ray photograph reveals simple
pneumoconiosis. Since then there is no change, the disease having made no progress. He was not
certified by the pneumoconiosis board until 1955 when he was awarded a disablement pension

based on a 10 per cent. disability. He had suffered no loss of earning capacity and at present is
unlikely to do so; and the doctors are not satisfied that there is any loss of expectation of life. But I
cannot treat the damage done to him as trivial. In Shovelin's case nine years passed during which
an early and uncomplicated pneumoconiosis showed no change; then there appeared the sign of
tubercular infection. It seems to me that a substantial sum should be assessed to take into account
the risk of Mr. Paterson contracting tuberculosis or some other respiratory disease. I assess his
damages at 750."
When the writs were issued six years had elapsed since the breach which caused the damage.
George Waller Q.C. and J. F. S. Cobb Q.C. for the appellants. The question is whether time begins to run
from the date when something happens inside, but does no harm, or from the date when harm is done. The
man's knowledge must be relevant to
[1963] A.C. 758 Page 763
some extent, since something hidden from the whole world cannot found an action at common law, and that
knowledge would normally come first to the plaintiff. Therefore the judge was wrong in principle in holding
that the causes of action in each case occurred before October 1, 1950. So the injury here must be taken to
have first occurred when each man became aware of his disease. A man has suffered no injury if he does not
feel any symptoms or have any knowledge of his disease. This is in accordance with Lord Esher's definition
of "cause of action" in Coburn v. Colledge.1 In an action in respect of pneumoconiosis the essential fact for
the plaintiff to prove is that he has suffered injury, and that cannot be known until something has manifested
itself about his condition. In the present case there was at first something unknown to anybody. In relation to
the Limitation Act "cause of action" means that which makes action possible: see Board of Trade v. Cayzer,
Irvine Co. Ltd.2 An action cannot be possible if the grounds are still unknown to the plaintiff and when it is not
possible to prove damage. Here it was never possible to prove damage till much later than 1950. When
damage is an essential part of the cause of action, the cause of action accrues when the plaintiff, by the
standards of the reasonable man in his position, knows or should know that he has been injured or made
unwell or has suffered harm by something done by the defendant. "Cause of action is the right to prosecute
an action with effect": Douglas v. Forrest.3
The crucial time in such a case as this is when the disease first comes to light. As to the contraction of
diseases of this description: see Roberts v. Dorothea Slate Quarries Co. Ltd.4
In interpreting section 2 (1) of the Limitation Act, 1939, it is helpful to look at the general proposition in
Maxwell on the Interpretation of Statutes, 11th ed., p. 193, as to the possible injustice of a particular
interpretation. Here injustice would be suffered by the plaintiffs if they were not allowed to bring their actions,
while no injustice would be done to the defendants. If a reasonable construction can be found which will
avoid injustice it should be adopted. Since the enactment of section 6 (1) of the Law Reform (Limitation of
Actions, etc.) Act, 1954, the position would be exactly the same in Scotland, and Watson v.

[1897] 1 Q.B. 702, 703, 706-707; 13 T.L.R. 321, C.A.

[1927] A.C. 610, 617; 43 T.L.R. 625, H.L.

(1828) 4 Bing. 686, 704.

[1948] L.J.R. 1409, 1413; [1948] 2 All E.R. 201, H.L.

[1963] A.C. 758 Page 764

Winget Ltd.5 shows that injustice which would arise there in similar circumstances if the respondents'
contentions were right.
An act of neglect may occur on one day but the default may continue. The default does not occur till there is
injury, nor is the cause of action complete till then: see Board of Trade v. Cayzer, Irvine & Co. Ltd.6 Here the
appellants could not have started the proceedings earlier because they did not know of their injuries. See
also Central Electricity Board v. Halifax Corporation7 and Backhouse v. Bonomi.8
One must distinguish between a tort actionable per se and one in respect of which damage must be proved.
In the latter case one can only recover the damage which has occurred. Thus in a subsidence action, if the
subsidence damages a house so that the cost of repair is 150, one cannot in addition claim damages on the
ground that someone might not buy the house so for fear of further subsidence. Things may be happening
under the surface of the land of which no one knows, but a cause of action accrues when they manifest
themselves on the surface: see Darley Main Colliery Co. v. Mitchell.9 See also West Leigh Colliery Co. Ltd.
v. Tunnicliffe & Hampson Ltd.10 Howell v. Young11 was an entirely different case of the negligence of a
solicitor who was sued in assumpsit. The action arose on a breach of contract and damage was not an
essential part of the cause of action. It is not an authority in cases where damage is an essential part of the
cause of action or proof of special damage is a necessary ingredient. It does not apply to an ordinary action
in tort for negligence. If by what he said Holroyd J,12 meant it so to apply, his observations were obiter. The
action was rightly decided because it was in assumpsit. Archer v. Catton & Co. Ltd.,13 which applied the
authority to a case of pneumoconiosis, was wrongly decided. The true view is that when the pneumoconiosis
came to the plaintiffs' knowledge fresh damage was inflicted separate from and additional to the original
secret deterioriation of the lungs.

1960 S.C.(H.L.) 92, 105-106, 109-110.

[1927] A.C. 610, 628.

Post, p. 785; [1962] 3 W.L.R. 1313, 1323-1324; [1962] 3 All E.R. 915, H.L.

(1858-9) E.B. & E. 622, 654-655; (1861) 9 H.L.C. 503, 508-509.

(1886) 11 App.Cas. 127, 132-133; 2 T.L.R. 301, H.L.

10

[1908] A.C. 27; 24 T.L.R. 146, H.L.

11

(1826) 5 B. & C. 259; 8 D. & R. 14.

12

5 B. & C. 252, 266-267; 8 D. & R. 14, 21.

13

[1954] 1 W.L.R. 775; [1954] 1 ALL E.R. 896.

[1963] A.C. 758 Page 765

The cause of action arises when the plaintiff knows or ought to know that he has suffered substantial harm
by something done by the defendant or, alternatively, when the plaintiff's enjoyment of life has been
interfered with by an act or omission of the defendant. Damages for personal injuries always include the
element of interference with the enjoyment of life by pain and suffering as well as financial loss. Loss of the
amenities of life is only an element if there is permanent interference with the plaintiff's capacity. As to
damages: see Fair v. North-Western Railway Co.14 and Haygarth v. Grayson Rollo & Clover Docks Ltd.15 In
Darley Main Colliery Co. v. Mitchell16 Lord Bramwell notes the differences between cases of injury to the
person and injury to property. If the decision of the Court of Appeal in the present case is right, it is the first
case where a cause of action for personal injuries has been held to arise at a time when there was no
personal inconvenience. What was said in Backhouse v. Bonomi17 could, without much paraphrase, be
applied to the present case. In such a case as this a man must have some injury before the first signs of it.
appear on the X-ray. There is no authority contrary to the submission that before a cause of action arises in a
case of personal injuries it is essential that there must be some impairment of the enjoyment of life. In the
analogy of the subsidence cases, the movement of the earth was secret until the house cracked. The
damage arises from something which does harm when it comes to the surface.
These cases of pneumoconiosis are unique in that the changes occur, not only unknown to the plaintiff, but
unknown to anyone at all, and no one is conscious of the harm done until the damage occurs. The law does
not pay regard to things which do not appear. only when a man knows of the injury can he issue a statement
of claim stating every fact he must set out, because till then he could not allege injury.
Three legal maxims support the appellants' contentions: (1) Idem est non esse et non apparere. (2) Quod
non apparet non est. (3) De non apparentibus, et non existentibus, eadem est ratio.
Reliance is placed on Urie v. Thompson.18 where the United States Supreme Court was dealing purely with
a question of negligence. It is a case on all fours with the present case and

14

(1869) 21 L.T. 326, D.C.

15

[1951] 1 Lloyd's Rep. 49, 52, C.A.

16

11 App.Cas. 127, 144-145.

17

E.B. & E. 622, 656; 9 H.L.C. 503, 512.

18

(1949) 337 U.S. 163, 165, 168 et seq., 173 et seq., 183, 186-187.

[1963] A.C. 758 Page 766

of high persuasive authority as showing that in the case of industrial diseases time starts to run from the date
when the plaintiff knew or should have known about it. It was applied in Coots v. Southern Pacific Co.19 and
Ricciuti v. Voltare Tubes Inc.20 See also Harvard Law Review, vol. LXIII, p. 1207.
Against the appellants' contention that knowledge is important there were cited R. B. Policies at Lloyd's v.
Butler21 and Beaman v. A. R. T. S. Ltd.22 But these were conversion cases in which proof of special
damage is not required. By contrast, in personal injuries cases there is always an element of suffering and
therefore of knowledge. There has always been a distinction between an action for damages for personal
injuries and an action for damage to property: see the Darley Main case23 and Brunsden v. Humphrey.24
They are two different causes of action and different principles operate. See also Salmond on Torts, 13th ed.,
pp. 777-778.
As to the hardships and injustices which might arise in cases of the slow manifestation of disease, see the
Report of the Committee on Limitation of Actions in Cases of Personal Injury (Cmnd. 1962, No. 1829) paras.
3E and 16.
In summary, the plaintiffs' injuries must be taken as having first occurred when each man became aware of
his pneumoconiosis; because a man who feels no symptoms and has no knowledge of it, has suffered no
injury. Even if a cause of action accrued when the secret injury was done to the men's lungs, a fresh cause of
action accrued when they discovered the damage. With so insidious a disease as this the courts should
import into section 2 of the Limitation Act a gloss that time does not start to run till the plaintiff knows or
should have known of the injury he has suffered.
J. F. S. Cobb Q.C. following. The canons of construction demand that every word of section 2 of the
Limitation Act must be given an effective meaning of its own. Note the words "from the date on which the
cause of action accrued." This section is the direct descendant of section 3 of the Statute 21 Jac. I, c. 16, the
material words of which are" within six years next after the cause of such actions or suit." The word "date" is
introduced by the Act of 1939 and must be given an effective meaning. In the context of section 2 it must
mean an ascertainable day:

19

(1958) 322 P. 2nd. 460.

20

(1960) 277 F. 2nd. 809.

21

[1950] 1 K.B. 76; 65 T.L.R. 436; [1949] 2 All E.R. 226.

22

[1949] 1 K.B. 550; 65 T.L.R. 389; [1949] 1 All E.R. 465, C.A.

23

11 App.Cas. 127.

24

(1884) 14 Q.B.D. 141, C.A.

[1963] A.C. 758 Page 767

it is an essential ingredient, and any cause of action should involve proof of the day on which it accrued.
There is good reason why every cause of action should have its day. If the respondents were right some of
these appellants would have been buried before they were aware that they had a cause of action at all; it
would be impossible to say that a cause of action accrued on any day or in any month or year. See Urie's
case.25 Employers could not fill in any form for insurers if they are not aware of any claim, and it would be
irrational if an employee had to be deemed to be aware of it. It would be wrong to require a man to bring his
action at an earlier stage when it was impossible to arrive at any moment of time as an identifiable date when
damage was suffered. At the earlier date there was damage, but damage which was undiscoverable, so that
no reasonable man could have been aware of it.
Patrick O'Connor Q.C. and P. M. Taylor for the respondent company. The appellants are trying to show that
they have suffered actionable aggravation of their disease after October 1, 1950. They brought actions
claiming damages for personal injuries caused by the respondents' breach of statutory duty. It is for them to
prove that the respondents owed them a duty, that there was a breach of that duty and that as a result of that
breach they had suffered personal injuries. The judge found that the injury had been done before October 1,
1950, since before that date each had pneumoconiosis. Some of them did not know that they had it nor
ought they as reasonable men to have known it. The fact that the plaintiffs suffered no inconvenience is
immaterial. If a man suffered injury to his spleen, which was removed, he could get damages because it was
a physical impairment to his body, quite apart from any pain and suffering, and it would not be for the
wrongdoer to say that his spleen was no use to him. So here, if there was enough scar tissue to show up on
an X-ray, that cannot be described as minimal, even if it is no inconvenience to the man at the time. A plaintiff
sues for some physical impairment to his body or mind, apart from any consequential loss in wages or
earning capacity. The appellants found on the contention that no cause of action arises until a man knows or
should know of his injury. But section 26 of the Limitation Act is contrary to that contention: see Beaman v. A.
R. T. S. Ltd.26 If there is a breach of duty and factual injury, there is a cause of action, irrespective of the
plaintiff's knowledge. It

25

337 U.S. 163, 170.

26

[1949] 1 K.B. 550, 557-558, 559.

[1963] A.C. 758 Page 768

would create injustice to hold otherwise: see Nash v. Parkinson, Cowan Ltd.27 The position under the Fatal
Accidents Acts shows that knowledge is not essential to the cause of action. Contrast the South African
legislation relating to prescription, section 3 (1) of Act No. 18 of 1943: see Brink v. Mostert28; Oslo Land Co.
Ltd. v. Union Government29 and also Williams v. Milotin.30 The ground of action there is damage and want
of care, and there is no question of knowledge by the plaintiff.
As to the subsidence cases relied on by the appellants, they are not negligence cases at all: see the West
Leigh case.31 The line of authority in subsidence cases is not very helpful here.
Lawrance v. Norreys,32 under section 26 of the Real Property Limitation Act, 1833, comes near to this case,
but there is no direct authority on the point. See also Thomson v. Lord Clanmorris.33
As to pneumoconiosis, compare section 4 of the Nuclear Installations (Licensing and Insurance) Act, 1959,
under which a 30-year period of limitation is prescribed. If harm was done, the action would accrue at the
time and not subsequently, perhaps years after the harm occurred. This Act provides a useful analogy as

10

showing that knowledge of the injury is not essential. Suppose ionising radiations were discharged into a
stream and physical harm was done only to a person who drank the water but the results did not appear until
after the limitation period had elapsed, the claim would be barred. A man might be injured by driving past a
nuclear site when he did not even know it was there; if he is exposed to nuclear radiation he has a cause of
action even before the symptoms have appeared.
As to the measure of damages, see Phillips v. South Western Railway Co.,34 the Darley Main case35 and
Brunsden v. Humphrey.36 Damages for personal injuries and for damage to goods arising out of the same
event are two different causes of action, subject to different considerations. It may be that the limitation laid
down for a case like the present is inappropriate, but that is a matter for Parliament to change, as the
Committee on Limitation of Actions has recommended. The difficulty with a Statute of Limitations is that it
produces hard cases both ways.

27

(1961) 105 S.J. 323.

28

1954 (4) S.A. 718.

29

1938 A.D. 584.

30

(1957) 97 C.L.R. 465.

31

[1908] A.C. 27, 29, 31.

32

(1890) 15 App.Cas. 210, 213, 216; 6 T.L.R. 285, H.L.

33

[1900] 1 Ch. 718, 726; 16 T.L.R. 296, C.A.

34

(1879) 4 Q.B.D. 406, 407.

35

11 App.Cas. 127, 142-143, 145.

36

14 Q.B.D. 141, 144-145, 148-149.

[1963] A.C. 758 Page 769

for example, Harnett v. Fisher.37 In the present case the problem was well put by Pearson L.J. in the Court
of Appeal.38
There is no authority to suggest that no cause of action arises until the plaintiff knows or ought to have
known the facts. If at a given time the facts established a breach of duty producing physical harm, the cause
of action is complete and the injured man's knowledge is irrelevant. Before October 1, 1950, each of the

11

appellants had suffered substantial physical harm, which was ascertainable. There is no direct authority on
the point of knowledge save the cases set out by Pearson L.J. in the Court of Appeal.39 Howell's case,40
which he cited, is good authority on tort. Other authorities which he cited are Hurst v. Parker41; Beale v.
Nind42; Wilby v. Henman43; the Darley Main case44; O'Connor v. Isaacs45 and Darby and Bosanquet's
Statutes of Limitations, 2nd ed. (1893), p. 546. Whitehouse v. Fellowes46 is also relied on. If there had been
a fresh breach of duty later or if there were a continuing breach of (duty the respondents would be liable, but
that is not the case.
The Law Reform (Limitation of Actions, etc.) Act, 1954, had not yet taken effect when the matters material to
this action occurred. The problem with which section 2 was dealing was the known incidence of dishonest
claims.
P. M. Taylor following. The burden of proof on a plaintiff to take himself out of the Limitation Act has a
rational basis in that the purpose of the Act is to protect the defendants from having to prove matters which
occurred a long time ago and which are hard to establish. It would be a hardship on a defendant who is being
so protected if in such a case as this he had to prove those very matters in order to show that he was within
the Act.
As to the maxim de minimis non curat lex, the contributions to the disease at the material time were material
and did not fall within the exception: see Bonnington Castings Ltd. v. Wardlaw.47 What Lord Reid said there
can be transplanted

37

[1927] 1 K.B. 402, 421-422; 42 T.L.R. 745, C.A.; [1927] A.C. 573; 43 T.L.R. 567, H.L.

38

[1962] 1 Q.B. 189, 203; [1961] 3 W.L.R. 838; [1961] 2 All E.R. 482, C.A.

39

[1962] 1 Q.B. 189, 208.

40

5 B. & C. 259; 8 D. & R. 14.

41

(1817) 1 B. & Ald. 92.

42

(1821) 4 B. & Ald. 571.

43

(1834) 2 Cr. & M. 658.

44

11 App.Cas 127, 135.

45

[1956] 2 Q.B. 288, 364; [1956] 2 W.L.R. 585; [1956] 3 W.L.R. 172; [1956] 1 All E.R. 513; [1956] 2 All E.R. 417, C.A.

46

(1861) 10 C.B.N.S. 765.

12

47

[1956] A.C. 613, 621; [1956] 2 W.L.R. 707; [1956] 1 All E.R. 615, H.L.

[1963] A.C. 758 Page 770

into the field discussed in the present case. Any impairment of a man's physical condition: which is not de
minimis must be material. A man has a right to be "unmolested in all his bodily powers": Brunsden v.
Humphrey.48 See also section 2 (3) of the Law Reform (Limitation of Actions, etc.) Act, 1954, defining
"personal injuries." The reserve capacity of a lung is a useful attribute and does not come within the meaning
of de minimis.
George Waller Q.C. in reply. It was never the contention of the appellants that knowledge by a plaintiff of his
injury is essential to every cause of action in tort. What is submitted is that in an action for damages for
personal injuries no cause of action arises when no one knows of any personal injuries. The other view is
contrary to common sense: see Backhouse v. Bonomi.49
As to section 26 of the Act of 1939, see Darby and Bosanquet's Statutes of Limitation, 2nd ed., p. 37, for the
previous history of the matter. That section does not invalidate the appellants' argument that it is important to
consider knowledge in a case where no one knows anything about the damage. Knowledge of harm to the
individual is an essential part of his cause of action and is relevant to damage. Damage must (a) be
substantial and (b) involve pain, suffering or sensible discomfort: see Salvin v. North Brancepeth Coal Co.50
which is helpful in considering the proper approach in the present case to the question when the cause of
action arose. See also Phillips v. London & South Western Railway Co.51 The only element of damages for
personal injuries which is not connected with knowledge is loss of expectation of life where the person
concerned dies; in the case of personal injuries that is an anomaly. See Flint v. Lovell52 and Rose v. Ford.53
These two cases created a new form of litigation. What Lord Roche said in the latter case54 is helpful here;
when he refers to "bodily hurts," that covers pain. As to the fixing of damages in such cases, see Benham v.
Gambling.55 Until this new claim for loss of expectation of life there had always been a claim for pain and
suffering as an element in the damages, and that implied consciousness of the injuries. Contrast section 1 of
the Fatal Accidents Act, 1846. A person who died of

48

14 Q.B.D. 141, 145.

49

9 H.L.C. 503, 509.

50

(1874) L.R. 9 Ch. 705, 708-709, C.A.

51

(1879) 5 C.P.D. 280, 287, C.A.

52

[1935] 1 K.B. 354; 51 T.L.R. 127, C.A.

53

[1937] A.C. 826; 53 T.L.R. 873; [1937] 3 All E.R. 359, H.L.

54

[1937] A.C. 826, 856.

13

55

[1941] A.C. 157; 57 T.L.R. 177; [1941] 1 All E.R. 7, H.L.

[1963] A.C. 758 Page 771

pneumoconiosis would certainly be very ill indeed and would know of his illness at an early stage through
suffering.
The Nuclear Installations (Licensing and Insurance) Act, 1959, shows just the opposite of what the
respondents contend: see section 4 (4).
The cases relied on by the respondents fall into two categories. As to cases like Lawrance v. Norreys56 and
Thomson v. Lord Clanmorris57 it is agreed that knowledge of injury is not necessary. But cases like Harnett
v. Fisher58 are different. That was a land case and provides no authority for so interpreting this Act as to
create a whole category of land cases where persons suffer unascertainable damage. Most of the land cases
deal with property and not injury to the person.
In all limitation cases there is an actual date when the cause of action can be said to have accrued and it is
not enough here to say that it accrued some time before October 1, 1950. The cause of action arises when
the plaintiff knows or ought to know of the injury, that is, when the injury comes to light or when the plaintiff
suffers some impairment of his general enjoyment of life. If a cause of action could arise when no one could
know of the injury's existence, that would be unjust and contrary to common sense. Further, if the damages
had to be assessed as at October 1, 1950, that would be very hard and highly speculative in the case of
some of the appellants. The construction of the Limitation Act for which the appellants contend is permissible
and there is no authority against it. If the cause of action arises when the plaintiff knows or ought to know of
the injury, the obligation to bring the action within the Limitation Act is sensible and imposes no hardship and
the Act is workable in the sense of doing justice. [Reference was made to Wise v. Kaye.59]
It is understood that the respondents do not ask for costs in any event.
Their Lordships took time for consideration.
January 17, 1963. LORD REID. My Lords, I have had an opportunity of reading the speech which my noble
and learned friend, Lord Pearce, is about to deliver and I agree with it. It is now too late for the courts to
question or modify the rules that a cause of action accrues as soon as a wrongful act has caused

56

15 App.Cas. 210.

57

[1900] 1 Ch. 718.

58

[1927] 1 K.B. 402.

59

[1962] 1 Q.B. 638; [1962] 2 W.L.R. 96; [1962] 1 All E.R. 257, C.A.

[1963] A.C. 758 Page 772

14

personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot
be discovered by the sufferer, and that further injury arising from the same act at a later date does not give
rise to a further cause of action. It appears to me to be unreasonable and unjustifiable in principle that a
cause of action should be held to accrue before it is possible to discover any injury and, therefore, before it is
possible to raise any action. If this were a matter governed by the common law I would hold that a cause of
action ought not to be held to accrue until either the injured person has discovered the injury or it would be
possible for him to discover it if he took such steps as were reasonable in the circumstances. The common
law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally
as to produce such a result in circumstances never contemplated when they were decided.
But the present question depends on statute, the Limitation Act, 1939, and section 26 of that Act appears to
me to make it impossible to reach the result which I have indicated. That section makes special provisions
where fraud or mistake is involved: it provides that time shall not begin to run until the fraud has been or
could with reasonable diligence have been discovered. Fraud here has been given a wide interpretation, but
obviously it could not be extended to cover this case. The necessary implication from that section is that,
where fraud or mistake is not involved, time begins to run whether or not the damage could be discovered.
So the mischief in the present case can only be prevented by further legislation.
The evidence in this case is to the effect that a person who is susceptible to pneumoconiosis, and who
inhales the noxious dust over a period of years, will have suffered substantial injury to his lungs before, and it
may be long before, his injury can be discovered by any means yet known to medical science. And there
appears to be no way of finding in advance whether a particular person is susceptible to the disease. The
earliest possible diagnosis is from X-ray photographs, but even if such photographs are taken at regular
intervals it seems that early indications are not easy to read and it is not at all easy to say, after the first
positive indication of the disease has been found, how much time has already elapsed since the injury to the
workman first became material. So we have the absurd result that, even if the workman is able to have X-ray
photographs taken at regular intervals, a large part, or it might be the whole, of the three-year period of
limitation would have elapsed before he could,
[1963] A.C. 758 Page 773
even with the best possible advice, instruct the raising of an action. And if he were lucky enough to be able to
raise an action at all it would be quite impossible at that stage to make any curate assessment of the
probable development of the disease.
Were it not for the fact that a committee which has examined the problem has found it necessary to propose
a rather elaborate scheme, I would have been inclined to think that an extension of the scope of section 26 of
the Limitation Act would achieve substantial justice without any serious prejudice to the legitimate rights of
defendants. Such cases as Davie v. New Merton Board Mill Ltd.1 show that under the law as it now stands
several years may not infrequently elapse between the last negligent or wrongful act of the defendant and
the date when a cause of action first accrues. In Davie's case1 the period was seven years. That is because
in those cases the danger created by the defendant only causes damage to the plaintiff at a much later date.
But there seems little if any practical difference between causing damage which only occurs at a later date
and causing damage which can only be discovered at a later date. If a defendant has to pay in the one case
why should he not have to pay in the other case? But one thing at least is clear. The fact that the present law
requires us to dismiss this appeal shows that some amendment of the law is urgently necessary.
My Lords, my noble and learned friend, Lord Hodson, is unable to be present this morning and he has asked
me to say that he concurs.
LORD EVERSHED. My Lords, I have had the advantage of reading in advance the opinion about to be
delivered by my noble and learned friend, Lord Pearce, and I, sharing my regret with his, agree with his

15

conclusion that the appeal must fail.

My Lords, the appeal must turn upon the proper meaning in section 2 (1) of the Limitation Act, 1939, of the
few and simple words "the date on which the cause of action accrued" when applied to the tort of inflicting
bodily injury by a breach of common law or statutory duty; for there can be no valid distinction between the
two.
My Lords, it cannot, I conceive, be in doubt upon the numerous authorities (including that of Darley Main
Colliery Co. v. Mitchell2 in your Lordships' House) cited by my noble and learned

[1959] A.C. 604; [1959] 2 W.L.R. 331; [1959] 1 All E.R. 346, H.L.

(1886) 11 App.Cas. 127; 2 T.L.R. 301, H.L.

[1963] A.C. 758 Page 774

friend that the cause of action from such a wrong accrues when the damage - that is, real damage as distinct
from purely minimal damage - is suffered. To postpone the date in such a case as the present would, in my
opinion, necessarily require the insertion of some words qualifying the statutory formula. My Lords, the wellestablished principles of the interpretation of statutes by the courts of this country forbid such an insertion;
and more particularly so having regard to the express provision in section 26 of the same Act for postponing
the date of the accrual of the cause of action in cases involving fraud or mistake to the date when the fraud
or mistake was, or could with reasonable diligence, have been discovered.
My Lords, I share accordingly with my noble and learned friend the hope that in the interests of justice
Parliament will take an early opportunity of making by way of some corresponding qualification a further
exception to the general formula in the case of wrongs of the kind here in question. If on the one hand it is
right and proper that causes of action should not be allowed to become stale, it must be no less right and
proper that persons employed in factories should not have the ordinary enjoyment of their working lives
destroyed by the need of constant and elaborate medical examination and be driven, often prematurely, to
litigate with their employers lest they lose the benefit of just compensation for injury received. The present
case well illustrates the result, for the most part highly beneficial, of the impact of scientific discovery upon
the working of ancient principles of the law. The resources of a generation ago would not have discovered
the disease of silicosis before some at any rate of its symptoms had become manifest to the injured man. In
another generation science may, if the present statute for limiting causes of action remains unamended,
render justice unattainable for ordinary men in cases of this kind.
My Lords, it would be comforting if we were able to invoke in the present case the application of Urie v.
Thompson3 and the other American cases to which my noble and learned friend has alluded. But those
decisions depended upon a principle for construing federal legislation in the United States of America which
is not open to your Lordships' House. Nonetheless, I venture to think that the application of the law relating to
injury from silicosis as expounded in America gives cogent emphasis to the

16

(1949) 337 U.S. 163.

[1963] A.C. 758 Page 775

need for amendment of the law of England relating to the same subject.
LORD MORRIS OF BORTH-Y-GEST. My Lords, I have had the privilege of reading in advance the speech
which my noble and learned friend, Lord Pearce, is about to deliver and I am in agreement with it.
In your Lordships' House the appeal proceeded upon an acceptance of the findings that there were no
breaches of duty after October 1, 1950, which caused any appreciable damage to the men concerned, but
that there were breaches of duty prior to October 1, 1950, which did cause some damage to them. (There
were considerable inhalations of dust which did not result from and did not involve any breaches of duty on
the part of the respondents.) It was held at the trial that all the men had in fact suffered damage before
October, 1950. It was also held that in every case but one (and the Court of Appeal held in that case also) an
X-ray examination made in October, 1950 (had such an examination been made in each case), would have
indicated the existence of the disease of pneumoconiosis. The evidence established, however, and it was
held, that lung damage had been caused before the stage was reached at which the existence of the disease
would have been detectable on X-ray examination. But the evidence further showed that the men concerned
only became aware that they were suffering from pneumoconiosis on varying dates, most of which were
probably within six years of the date of the issue of the writ. By the end of 1955 all the men had been certified
to be suffering from pneumoconiosis. The question arose as to what was the position of a man who was in
fact suffering from lung injury or pneumoconiosis caused, or partly caused, by some breach of duty but who
was unaware of the fact that he was so suffering. It was submitted that none of the men knew or had any
reason for knowing before October 1, 1950, that they were victims of pneumoconiosis. The judge held that
"the cause of action accrues when the damage is done and not when the intending plaintiff first learns that it
has been done." It was therefore of the essence of the submission for the appellants that in an action for
damages for personal injury, where the injury is pneumoconiosis caused by the inhalation of fine particles of
silica, a cause of action does not accrue until such time as there is (or as there ought to have been)
knowledge of the existence of the disease.
[1963] A.C. 758 Page 776
My Lords, for the reasons which my noble and learned friend, Lord Pearce, sets out in his speech, I see no
escape form the conclusion that if a breach of duty causes an injury to the lung, a cause of action arises
when that injury is done and that the cause of action is not postponed until such time as (or ought to be)
knowledge of the occurrence of the injury. The presence in the Limitation Act, 1939, of the provisions which
are contained in section 26 points,in my view, to the conclusion that apart form some special provision the
accrual of cause of action is not dependent upon knowledge that it has accrued. If someone knew that he
had a lung injury but did not know that it had been contemporaneously caused by some breach of duty which
had occurred in the past, I cannot think that such lack of knowledge would serve to defeat a plea that the
breach of duty had occurred at a date more than six (or three) years previously.
The evidence in the present case shows indisputably that there may be lung injury caused by the inhalation
offing particles of silica and that an injured person may, without any kind of fault on his part, be unaware of
the fact that he has been caused injury. A result of this, in a case where there has been a breach of duty, is
that a limitation period may bar a remedy before there is or could be knowledge of a case of action I share
the regret expressed by others of your Lordships that consideration may be given to an amendment of the
law.

17

LORD PEARCE. My Lords, the plaintiffs in a consolidated action appeal from a judgment of the Court of
Appeal affirming the dismissal by breach of statutory duty. Seven claims are brought by steel dressers
formerly by the personal representatives of men who were so employed and have since died. The
defendants denied the allegations of negligence and breach of duty. They also pleaded the Limitation Act,
1939. The trial judge found breaches of statutory duty proved and assessed the damages in varying sums
amounting in all to 25,540. He regretfully felt bound, however, to hold that all the claims were barred by the
Limitation Act. The Count of Appeal with like regret affirmed his decision. Plainly, on the facts of this is a
harsh result, and the appellants contend that such a result cannot have been intended by the legislature.
[1963] A.C. 758 Page 777
There were many issues before the trial judge, and he set out his findings in a lucid and comprehensive
judgment. Many of these have no relevance to this appeal, which is solely concerned with the effect of the
Limitation Act in cases where an insidious industrial disease has done secret damage whose existence may
not be discovered, or even discoverable, until some years after the first onset of the disease.
The facts and findings relevant to the appeal are as follows:
[His Lordship stated the facts and continued:] The Limitation Act, 1939, section 2 (1), provides: "The following
actions shall not be brought after the expiration of six years from the date on which the cause of action
accrued ... (a) actions founded on ... tort. ..." That period of six years was reduced to three years in the case
of actions for damages for personal injuries by the Law Reform (Limitation of Actions, etc.) Act, 1954, but the
reduction had not yet taken effect when the matters material to this action occurred. Its effect in subsequent
cases, however, will have increased the urgent need for some solution of the difficulty raised by the present
action, whether that solution can be found within the present framework of the law or must be achieved by
legislation.
When the writs were issued, six years had already elapsed since the cessation of the breach which caused
the damage. The claims would therefore be barred if the date of the breach of duty was the date on which
the causes of action accrued. But negligence and breach of statutory duty are not actionable per se and no
cause of action arises unless and until the plaintiff can show some actual injury. Normally the injury is
contemporaneous with the wrongful act, but it is not necessarily so. In the present case, therefore, the
causes of action did not accrue until some actionable injury was caused to the plaintiffs by the defendants'
breach of duty. The judge found that "each of these men had suffered damage and causes of action had
accrued in each case before October 1, 1950." Mr. Waller contends that the judge erred in principle in so
finding.
First, he contends that the injury to the plaintiffs must be taken to have first occurred when the man became
aware of his disease; since a man who does not feel any symptoms or have any knowledge of his physical
disease has suffered no injury. Secondly, he argues that even if a cause of action accrued when the unknown
injury was done to the lungs, a fresh cause of action accrued when the damage was discovered. Finally, he
argues that in the case of injury by such insidious diseases as pneumoconiosis the
[1963] A.C. 758 Page 778
courts should import into the words of the Limitation Act a gloss that the cause of action does not accrue or
time does not begin to run until such time as the plaintiff knows or ought to know that he has suffered injury.
Mr. Waller's attractive argument would produce a result according with common sense and would avoid the
harshness and absurdity of a limitation that in many cases must bar a plaintiff's cause of action before he
knows or ought to have known that he has one.
There is no case that seeks to define the borders of actionable physical injury. Your Lordships have been

18

referred to words used in various cases. In Fair v. London & North-Western Railway Co.4 Cockburn C.J.
said: "... in assessing that compensation the jury should take into account two things; first, the pecuniary loss
he sustains by the accident; secondly, the injury he sustains in his person, or his physical capacity of
enjoying life." Again, in Haygarth v. Grayson Rollo & Clover Docks Ltd.5 Asquith L.J. said: "General damage,
while usually assessed in a single global sum, ought to include loss referable to at least three factors, where
all three factors are present, namely, the respective loss of earnings, pain and suffering and loss of amenity."
Such observations naturally proceed on the normal basis that personal injury involves some pain or patent
loss of amenity, but the unusual question before your Lordships is whether a hidden, painless injury or latent
loss of amenity sounds in damages. And in no case is it laid down that hidden physical injury of which a man
is ignorant cannot, by reason of his ignorance, constitute damage.
In my opinion, it is impossible to hold that a man who has no knowledge of the secret onset of
pneumoconiosis and suffers no present inconvenience from it cannot have suffered any actionable harm. So
to hold might possibly on the wording of the Fatal Accidents Act deprive of all remedy a widow whose
husband dies of pneumoconiosis without having had any knowledge or symptom of the disease. And it would
be wrong to deny a right of action to a plaintiff who can prove by X-ray photographs that his lungs are
damaged but cannot prove any symptom or present physical inconvenience. Nor can his knowledge of the
state of his lungs be the deciding factor. It would be impossible to hold that while the X-ray photographs are
being taken he cannot yet have suffered

(1869) 21 L.T. 326, 327, D.C.

[1951] 1 Lloyd's Rep. 49, 52, C.A.

[1963] A.C. 758 Page 779

any damage to his body, but that immediately the result of them is told to him, he has from that moment
suffered damage. It is for a judge or jury to decide whether a man has suffered any actionable harm and in
borderline cases it is a question of degree. My noble and learned friend, Lord Reid, observed in a
pneumoconiosis case (Bonnington Castings Ltd. v. Wardlaw 6: "What is a material contribution must be a
question of degree. A contribution which comes within the exception de minimis non curat lex is not material,
but I think that any contribution which does not fall within that exception must be material. I do not see how
there can be something too large to come within the de minimis principle but yet too small to be material."
Although those words were spoken with reference to the emission of the harmful dust, they are equally
applicable to the injuries caused by it. It is a question of fact in each case whether a man has suffered
material damage by any physical changes in his body. Evidence that those changes are not felt by him and
may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the
other hand, evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden
impairment tells in favour of the damage being substantial. There is no legal principle that lack of knowledge
in the plaintiff must reduce the damage to nothing or make it minimal. Moreover, throughout this contention
runs the difficulty in the present cases that since the pneumoconiosis did not increase of itself, whatever was
the harm for which the judge awarded damages must have existed before October, 1950, when the cause of
it ceased. I find myself, therefore, unable to accept Mr. Waller's first contention.
Mr. Waller supported his second contention by drawing an analogy from subsidence cases where the cause
of action accrues not when the support is withdrawn but when the actual damage is caused by its withdrawal
(Backhouse v. Bonomi7. If the result of the withdrawal of support is that one damage is done today and

19

another subsequently, there is nothing to prevent a fresh action as often as fresh damage is inflicted (Darley
Main Colliery Co. v. Mitchell8; see also Harrington v. Derby Corporation9. The damage recoverable in such
cases is, however, that which has

[1956] A.C. 613, 621; [1956] 2 W.L.R. 707; [1956] 1 All E.R. 615, H.L.

(1858-59) E.B. & E. 622; (1861) 9 H.L.C. 503.

11 App.Cas. 127.

[1905] 1 Ch. 205; 21 T.L.R. 98.

[1963] A.C. 758 Page 780

actually occurred; it cannot include future damage or even present depreciation of value due to apprehension
of future damage (West Leigh Colliery Co. Ltd. v. Tunnicliffe & Hampson Ltd.10. In the present cases, it is
argued, when the pneumoconiosis was revealed and brought to the knowledge of the plaintiffs fresh damage
was inflicted, separate from and additional to the former secret deterioration of the lungs.
My Lords, such an analogy would provide an attractive escape from the difficulties of this case, but in my
opinion it would be unsound. The law as it has developed in subsidence cases cannot be extended to cover
the present case. In cases of personal injury the law is clear and has been settled for many years. Although
two separate actions may be brought, one for personal injury and one for damage to property, both being
caused by the same negligence (Brunsden v. Humphrey11, only one action may be brought in respect of all
the damage from personal injury.
In 1701 in the case of Fitter v. Veal or Fetter v. Beale or Ferrer v. Beale12 the plaintiff after recovering
damages for assault and battery discovered that his injuries were more serious than had been supposed. He
sought to bring a second action for the fresh damage. It was held, however, that he had but one cause of
action which had been extinguished by the judgment in the former case. That principle has never since been
doubted. It has been applied daily in countless actions for damages for personal injuries. In each case the
judge assesses the damages once and for all, with the knowledge that the plaintiff can get no further
damages for the possible traumatic consequences, such as arthritis or epilepsy, which may occur in the
years to come. Lord Halsbury said in Darley Main Colliery Co. v. Mitchell13: "No one will think of disputing
the proposition that for one cause of action you must recover all damages incident to it by law once and for
ever. A house that has received a shock may not at once show all the damage done to it, but it is damaged
nonetheless to the extent that it is damaged, and the fact that the damage only manifests itself later on by
stages does not alter the fact that the damage is there; and so of the more complex mechanism of the
human frame, the damage is done in a railway accident, the whole machinery is injured, though it may
escape the eye or even the consciousness of the sufferer at the

20

10

[1908] A.C. 27; 24 T.L.R. 146, H.L.

11

(1884) 14 Q.B.D. 141, C.A.

12

(1701) 12 Mod. 543; 1 Salk. 11; 1 Ld.Raym. 692.

13

11 App.Cas. 127, 132, 133.

[1963] A.C. 758 Page 781

time; the later stages of suffering are but the manifestations of the damage done, and consequent upon the
injury originally sustained," In the present case the known pneumoconiosis was but an extension of the
unknown. The cause of action accrued when it reached a stage, whether then known or unknown, at which a
judge could properly give damages for the harm that had been done. In these cases that stage, on the
findings of the trial judge, was reached before October, 1950.
Mr. Waller's final argument that in the case of insidious industrial disease time runs only from the date when
the plaintiff knew or ought to have known of it has support from a decision of the Supreme Court of the
United States. In Urie v. Thompson14 part of the headnote reads: "That the petitioner's contraction of
silicosis resulted from the inhalation of silica dust over a period of 30 years and he may have had silicosis
without knowing it for more than three years before he sued for compensation under the Federal Employers'
Liability Act, did not bar his claim when the time which elapsed between his discovery of his condition and the
filing of suit did not exceed three years, the period of limitations then presented by that Act."
The Supreme Court rejected both the contention that owing to the continued inhalations over many years the
plaintiff must be deemed to have contracted the disease more than three years before the proceedings
commenced, and the contention that, since each inhalation gave a fresh cause of action, the plaintiff was
limited to damages for inhalations during the three years immediately before action. "For, if we assume" said
Rutledge J.,15 that- Congress intended to include occupational diseases in the category of injuries
compensable under the Federal Employers, Liability and Boiler Inspection Acts, such mechanical analysis of
the 'accrual' of petitioner's injury - whether breath by breath, or at one unrecorded moment in the progress of
the disease - can only serve to thwart the congressional purpose. ... We do not think the humane legislative
plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences
can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the
assertion of claims within a specified period of time after notice of the invasion of legal rights." And later:
"There is no suggestion that Urie should have known he had silicosis at any

14

337 U.S. 163.

15

Ibid. 169-170.

[1963] A.C. 758 Page 782

21

earlier date." Urie's case16 has been applied in other cases (Ricciuti v. Voltarc Tubes Inc.17 in the United
States Court of Appeals, Second Circuit, and Coots v. Southern Pacific Co.18 in the Supreme Court of
California).
In Urie's case19 the limitation was contained in the Act which conferred the right of action and the inference
was drawn that Congress cannot have intended by the limitation in one section to thwart the rights conferred
by another. Such an inference is not available to your Lordships in the present case. For the English Act is of
general application to all classes of action and it is impossible to argue that it had any particular concern or
intention with regard to employees recovering compensation.
The Limitation Act, 1939 derives, with various alterations and additions, from the Limitation Act of 1623. It is a
practical compromise intended to encourage and secure reasonable diligence in litigation and to protect
defendants from stale claims when the evidence which might have answered them has perished. In A'Court
v. Cross20 Best C.J. said: "It is, as I have often heard it called by great judges, an act of peace. Long
dormant claims have often more of cruelty than of justice in them." one must prefer a construction of its
intention which produces a fair and sensible result, but inevitably in certain cases it creates hardship. See
per Scrutton L.J. in Harnett v. Fisher.21 Is it now open to your Lordships to adopt a construction which will
adapt its incidence more fairly in particular cases where modern conditions of industrial pneumoconiosis and
X-ray photography make its application unjust?
Past cases have been decided on the basis that the time runs from the accrual of the cause of action,
whether known or unknown, and no case has been cited in which the plaintiff's lack of knowledge has
prevented the time from running where that lack of knowledge has not been induced by the defendant. In
Howell v. Young22 the plaintiff, owing to the negligence of his solicitor, advanced money on inadequate
security. He was unaware of this at the time but more than six years later that negligence resulted in his
losing the interest on his money. It was held that his cause of action accrued at the time when the solicitor
was negligent (and the plaintiff was damaged by receiving inadequate

16

337 U.S. 163.

17

(1960) 277 F. 2nd, 809.

18

(1958) 322 P. 2nd, 460.

19

337 U.S. 163.

20

(1825) 3 Bing. 329, 332-333.

21

[1927] 1 K.B. 402, 422; 42 T.L.R. 745, C.A.; [1927] A.C. 573; 43 T.L.R. 567, H.L.

22

(1826) 5 B. & C. 259; 8 D. & R. 14.

22

[1963] A.C. 758 Page 783

security) although the plaintiff was then unaware of any negligence or damage. See also Granger v.
George23 and Short v. M'Carthy24 and Thomson v. Lord Clanmorris.25
In Archer v. Catton & Co. Ltd.,26 a pneumoconiosis case, Streatfeild J. rejected a contention that the cause
of action did not accrue until the plaintiff knew or should have known of his injury. In R. B. Policies at Lloyd's
v. Butler27 a plaintiff, whose car was stolen, found it in the possession of the defendant, an innocent
purchaser, more than six years later. The judge in holding that his action for conversion was statute - barred,
rightly relied strongly on the fact that section 26 of the Limitation Act, 1939 created a special exception where
the action was based on the defendant's fraud or where the right of action was concealed by the defendant's
fraud. And even in such cases the legislature apparently considered that the right of action accrued in spite of
the plaintiff's ignorance, since the Act provides that "the period of limitation shall not begin to run until the
plaintiff has discovered the fraud." Moreover, the Act of 1939 was passed in the light of the earlier cases to
which I have referred and had the legislature intended to secure a different result it would have said so.
Some reliance was placed on the words of Lord Dunedin in Board of Trade v. Cayzer, Irvine & Co. Ltd.28:
"Cause of action in the Statute of James means that which makes action possible." How, it is argued, can
action "be possible" if its grounds are still unknown to the plaintiff? But that case was directed to a wholly
different point. Lord Esher M.R. in Read v. Brown29 defined a cause of action as "every fact which it would
be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court."
He repeated that definition in Coburn v. Colledge.30 Perhaps a more satisfactory definition is that given by a
judgment of the High Court of Australia in Williams v. Milotin 31: "When you speak of a cause of action you
mean the essential ingredients in the title to the right which it is proposed to enforce. The essential
ingredients in an action of negligence for personal injuries include the

23

5 B. & C. 149.

24

(1820) 3 B. & Ald. 626.

25

[1900] 1 Ch. 718; 16 T.L.R. 296, C.A.

26

[1954] 1 W.L.R. 775; [1954] 1 All E.R. 896.

27

[1950] 1 K.B. 76; 65 T.L.R. 436; [1949] 2 All E.R. 226.

28

[1927] A.C. 610, 617; 43 T.L.R. 625, H.L.

29

(1888) 22 Q.B.D. 128, 131; 5 T.L.R. 97, C.A.

30

[1897] 1 Q.B. 702, 706; 13 T.L.R. 321, C.A.

23

31

(1957) 97 C.L.R. 465, 474.

[1963] A.C. 758 Page 784

special or particular damage - it is the gist of the action - and the want of due care."
Nothing, however, in these definitions is directed to the question whether a cause of action accrues to a
plaintiff who is unaware of it and there is nothing in them that suffices to throw doubt on the plain implication
of section 26.
I agree with the judgments of the Court of Appeal and I share their regret. I would only wish to add a gloss to
what was said on the onus of proof in the case of the plaintiff South. I agree that when a defendant raises the
Statute of Limitations the initial onus is on the plaintiff to prove that his cause of action accrued within the
statutory period. When, however, a plaintiff has proved an accrual of damage within the six years (for
instance, the diagnosis by X-ray in 1953 of hitherto unsuspected pneumoconiosis), the burden passes to the
defendants to show that the apparent accrual of a cause of action is misleading and that in reality the causes
of action accrued at an earlier date. As, however, the judge found that South was in fact suffering from
pneumoconiosis in 1950, the question of onus was not a deciding factor.
My Lords, a committee appointed in 1961 has recently reported on the limitations of actions in cases of
personal injury. It had the advantage of reading various memoranda from well-informed sources. Among
other things it considered the hardships of this case, to which the Court of Appeal drew attention. The report
recommends an amendment to the Statute of Limitations which would avoid them. It is to be hoped,
therefore, that in the future your Lordships will not have to deny relief in such cases as these to plaintiffs who
having good causes of action have lost them through no fault of theirs.
I would regretfully dismiss the appeal.
Appeal Dismissed.
Solicitors: Rowley, Ashworth & Co.; T. D. Jones & Co. for Linsley & Mortimer, Newcastle-upon-Tyne.

F. C.