Court of Appeal
Published July 24, 2008
Spencer v Secretary of State for Work and Pensions
Moore v Secretary of State for Transport and Another
Before Lord Justice Waller, Lord Justice Carnwath and Lord Justice Stanley Burnton
Judgment July 1, 2008

A cause of action for damages against the government for failure to implement Community law resulting in failure to provide a remedy in a personal injury case accrued as soon as some measurable damage had been suffered The Court of Appeal so stated when dismissing the appeals of: (i) Derek Keith Spencer against the dismissal of his claim by Mr Justice Holland ([2007] EWHC 1775 (QB)) and (ii) Kenneth Dudley Moore against the dismissal of his claim by Mr Justice Eady ([2007] EWHC 879 (QB)).

Mr Spencer made a claim against his employer for injury at work and a claim against the Secretary of State for Work and Pensions for failure to implement article 6(2) of Council Directive 89/391/EEC (OJ 1989 L183/1) into the Management of Health and Safety at Work Regulations (SI 1992 No 2051).

Mr Moore was injured by an untraced driver. He alleged his compensation from the Motor Insurers’ Bureau was not sufficient because the Secretary of State for Transport failed correctly to implement Council Directive 84/5/EEC (OJ 1984 L8/17).

The government submitted that any cause of action accrued when the claimants were injured and that both claims were barred by section 2 of the Limitation Act 1980.

Mr Paul Epstein, QC and Mr Andrew Buchan for Mr Spencer; Mr Jonathan Crow, QC, Ms Jemima Stratford and Mr David Barr for the secretary of state. Mr Robert Seabrook, QC and Mr Oliver Sanders for Mr Moore; Mr Jonathan Crow, QC, Ms Jemima Stratford and Mr David Barr for the secretary of state; Mr Dermod O’Brien, QC and Mr Fergus Randolph for the Motor Insurers’ Bureau.

LORD JUSTICE WALLER said that it was common ground that in a claim for damages under the principle in Francovich v Italian Republic (Joined Cases C-6/90 and 9/90) ([1995] ICR 722) the limitation period was six years from the accrual of the cause of action, that was, from the date when all the necessary ingredients of a cause of action were present.

There was no previous appellate authority dealing with limitation for claims like the present in the context of an alleged failure by the government to provide a remedy in a personal injury case.

It seemed to his Lordship that, at least prima facie, an alleged failure of a government to have a particular provision in force was analogous to a solicitor failing to provide an appropriate term in a contract or an insurance broker failing to provide an effective policy of insurance: for example, see: D. W. Moore v Ferrier ([1988] 1 WLR 267); Knapp v Ecclesiastical Group plc ([1998] PNLR 172); Law Society v Sephton ([2006] 2 AC 543) and Nykredit Mortgage plc v Edward Erdman Group Ltd (No 2) ([1997] 1 WLR 1627).

The facts might demonstrate that no measurable damage had been suffered at the date the negligent advice had been given or negligent failure had occurred, and that would be so where damage was totally contingent.

But if it could be shown that a claimant was worse off in terms that could be measured financially at the date of receipt of the advice or negligent failure, the cause of action would accrue on that date, even though accurate measurement of damage would be difficult and some of the damage might still be contingent.

In particular, if the allegation was of a failure to provide a term in a contract or a failure to provide an effective insurance policy, the cause of action would accrue on receipt of the negligently drafted contract or receipt of the ineffective policy because, as at that date, the claimant had received something of less value and had thus suffered loss.

As long as some measurable damage had been suffered the cause of action would accrue. A measurable loss was suffered by both Mr Spencer and Mr Moore in relation to their claims against the government when they suffered their personal injuries.

Limitation was a complete answer to their claims and the appeals would be dismissed.

Lord Justice Carnwath and Lord Justice Stanley Burnton agreed.

Solicitors: Dean Wilson Laing, Brighton; Treasury Solicitor. Russell Cooke LLP; Treasury Solicitor; Greenwoods.

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