SINFIELD AND OTHERS v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The 707 applicants are either former servicemen or personal representatives or dependents of deceased former servicemen. A list of the applicants is set out in the appendix. They are represented before the Court by Mr N. Sampson, a solicitor practising in London. 2. For ease of reference, the term “applicants” in the following statement of facts should be taken to mean both the present applicants and the deceased former servicemen who are represented by their estates. 3. Between 1952 and 1958 the United Kingdom carried out a series of atmospheric tests of thermonuclear devices in the region of the Pacific Ocean. All three branches of the armed forces took part, involving some 22,000 servicemen, including the applicants. Some contemporaneous monitoring was carried out of radiation levels to which individual servicemen were exposed at the moment of detonation, but no monitoring took place of subsequent exposure to radiation in the form of fallout through ingestion of contaminated water or fish, for example. 4. In medical and scientific circles it was known since the 1940s that exposure to ionising radiation was capable of causing many forms of cancer, although the risk was generally associated with fairly high levels of exposure caused by “prompt” or “instantaneous” radiation. Subsequently, the effects of lower levels of radiation caused by fallout were studied. In the United Kingdom, public interest in the possibility that British servicemen might have suffered ill effects as the result of exposure during the nuclear tests was aroused following a series of items on a BBC television news programme broadcast in December 1982 and early 1983. These ventilated the possibility that test participants were suffering unusual levels of ill health of various forms. This interest appears to have stemmed from publicity in Scotland generated by concerns raised in the Daily Record by one of the applicants, Mr Kenneth McGinley. Mr McGinley publicly claimed that he was one of a number of nuclear test veterans who had suffered ill health as the result of exposure to radiation. 5. Soon after this publicity, a group of veterans, all of whom had served in the Pacific during the tests, formed the British Nuclear Test Veterans Association (BNTVA). Mr McGinley was their Chairman. Their objectives were to gather information about their exposure to radiation and its likely effects, to press for further research and to seek financial recompense for any harm suffered, either by claiming for war pensions or by making claims for damages. 6. As a result of the publicity described above, in January 1983, questions were raised in Parliament about the possibility that the veterans had been injured by exposure to radiation. The attitude of the Ministry of Defence (MOD) was, and is, that the men had not been exposed to excessive levels of ionising radiation. However, the Government commissioned a health survey of the men involved in the tests, to be conducted by the National Radiological Protection Board (NRPB). 7. The survey sought to identify all the men who had been present in the area at the time of the tests and to compare them with a similar sized cohort of men of similar backgrounds who had not attended the tests. About 22,000 nuclear test veterans were identified. The survey examined death registration documents for causes of death and also the incidence of cancer using the National Health Service Cancer Register. The report, issued in November 1988, disclosed that, among the veterans, there was no excess mortality either from all causes or from all cancers. However, there was a significantly higher level of deaths from leukaemia and multiple myeloma among the participants than among the controls. The report expressed the view that this was probably a chance result, to be explained by the very low level of deaths from these causes among the control group. When the deaths among the participants were compared with the national mortality figures for those conditions, the excess among the participants was only slight. It was concluded that participation in the nuclear tests was not associated with any detectable effect on expectation of life or the risk of developing cancer. It added: “that there may well have been small hazards of leukaemia and multiple myeloma associated with participation in the programme, but their existence is certainly not proven and further research is desirable”. The NRPB carried out two more surveys and reported in 1993 and 2003, but the later conclusions did not differ significantly from the earlier ones. The methodology and conclusions of all three surveys were criticised by the BNTVA and subsequently by the claimants in the group action, principally on the ground that they looked only at deceased, but not living, veterans. 8. Meanwhile, in 1985 an action for damages was begun by a veteran named Melvyn Pearce. He developed a lymphoma in 1978 and alleged that it had been caused by exposure to ionising radiation during the tests. The allegations of negligence in Pearce v. The Secretary of State for Defence and Ministry of Defence [1988] AC 755 were based on both exposure to prompt high dose radiation (that is, as a result of proximate presence at one or more of the nuclear tests) and delayed, low dose, exposure (as a consequence of ingesting radionuclides from fallout while swimming in contaminated waters or eating contaminated fish). It was also alleged that the MOD had deliberately exposed the men to radiation as an experiment to see what the effects were. The MOD denied liability and sought to rely on immunity from suit provided by section 10 of the Crown Proceedings Act 1947. It did not plead the Limitation Act. The issue of immunity was treated as a preliminary issue and in due course went to the House of Lords which held in the Mr Pearce’s favour, leaving him free to proceed to trial. However, soon afterwards, the claim was discontinued, because the Mr Pearce’s team concluded that it could not prove a causal link between the exposure to radiation and the development of cancer. 9. In 2008, the results of a study carried out by a team of scientists led by Dr R.E. Rowland of the New Zealand Institute of Molecular Biosciences were published as “Elevated chromosome translocation frequencies in New Zealand nuclear test veterans” (“the Rowland Study”). Using a technique called “mFISH”, which involved “painting” chromosomes enabling breaks and rearrangements to become visible, the team had examined the damage to the chromosomes of 49 New Zealand veterans who had served on board two frigates positioned between 20 and 150 nautical miles upwind from certain explosions which were part of the United Kingdom nuclear test programme. The Rowland study found that the 49 crew members examined had on average three times as many chromosomal aberrations than 50 controls who had not taken part in the tests. This finding was regarded as significant and probably attributable to long term genetic damage resulting from ionising radiation during and after the nuclear test. An attempt was made to estimate the radiation dose from the level of translocations. The median dose for the veterans was estimated to be far in excess of the median estimated dose of the controls. However, the study made no claim for any correlation between the raised levels of chromosomal aberrations and the incidence of any illness. 10. Meanwhile, in 2002, several veterans instructed two different firms of solicitors with a view to bringing claims for damages. Legal Aid was granted for the investigation of the claims. On 23 December 2004 a claim form was issued in respect of a group action brought by or on behalf of 1,011 former servicemen, including the applicants, against the MOD. Damages were sought in respect of injury, disability or death alleged to have occurred in consequence of the exposure of the former servicemen to ionising radiation as a result of their presence near, or involvement in the aftermath of, the nuclear tests. 11. In August 2005 public funding was withdrawn from the claimants on the ground that the legal merits were insufficient to justify the case being pursued at public expense. It was agreed between the parties to stay the proceedings, until the Rowland study had been published. The stay was lifted on 1 September 2006 and a different firm of solicitors took over, after arrangements had been made for the matter to proceed on a conditional fee basis. Under the conditional fee arrangement, the solicitors would be paid only if the claimants were successful. The claimants purchased an insurance policy, known as “ATE (after the event) insurance”, to cover the MOD’s costs, should they be ordered against them. 12. On 29 December 2006 Master Particulars of Claim, containing more detailed allegations, were served. It was alleged that the nuclear tests had been negligently planned and executed, in that, inter alia, protective clothing and equipment was not supplied, to prevent the exposure of the servicemen to ionising radiation both at the time of each blast and subsequently, in the form of fall-out, and steps were not taken to prevent servicemen from swimming in contaminated water and eating contaminated seafood in the aftermath of the tests. In addition, it was alleged that the authorities failed properly to monitor the extent to which each serviceman was exposed to ionising radiation, both during and after each test. The claimants further claimed that they had suffered a variety of illnesses known to result from radiation exposure and relied in particular on the mFISH methodology, used by the Rowland study (see paragraph 10 above), as a reliable and specific indicator of genetic damage caused by exposure to ionising radiation. The Master Particulars of Claim included a partial list of the illnesses which the claimants, as a group, contended to have suffered as a result of their exposure to radiation, but individual medical reports were not included. In connection with the question whether the claims were timebarred, the applicants contended that it was only with the availability of the results of the Rowland study in 2007 that “scientific evidence became available that indicated that the conditions suffered by the veterans were attributable to exposure during the tests”. Furthermore, they argued that where delay had occurred, which in most cases was not great, this was explicable by funding difficulties and the MOD’s attitude of denial, and that the cases should be allowed to proceed under Section 33 of the Limitation Act 1980 (“the 1980 Act”: see paragraphs 27-29 below). 13. The MOD denied liability, alleging that all proper precautions were taken to protect service personnel from exposure to ionising radiation and that, in most cases, the actual exposure of the men was no more than the background radiation they would have experienced in the United Kingdom. In addition, the MOD contended that the claimants would be unable to prove, individually or as a group, that their illnesses were attributable to their presence during the nuclear tests, rather than other factors. The MOD also argued that the claims were time-barred under the terms of the 1980 Act, which requires a claimant to institute proceedings within three years of the date on which the cause of action accrued or “the date of knowledge (if later) of the person injured”. It was contended on behalf of the Ministry of Defence that the claimants had relevant knowledge prior to 23 December 2001 (that is, before the three-year period preceding the institution of proceedings). In relation to the discretionary power under section 33 of the 1980 Act, it was argued that the passage of time since the tests had eroded the cogency of the evidence and that the overall merits of the claim were weak, particularly in relation to causation. 14. A group litigation order was made, which decided inter alia that the issue of limitation should be tried as a preliminary point. On the agreement of the parties, five test cases were selected by each side for the purpose of the preliminary hearing to determine the limitation issues. On 10 April 2008 the MOD informed the veterans’ solicitor that it intended to serve expert evidence going to the weakness of the claims on causation. The following day the MOD was granted leave to serve limited expert evidence in the fields of radiobiology, epidemiology and nuclear physics. The applicants were subsequently granted leave to serve expert evidence in the same disciplines. The selection of the test cases was completed by August 2008. Disclosure was provided by the parties, but was limited to documents relevant to the limitation issues only. 15. The hearing took place over ten days in January and February 2009 before Foskett J, who heard and considered expert evidence in relation to the development of scientific knowledge of the effects of ionising radiation as well as evidence from the claimants about their knowledge and belief about the cause of their injuries. He delivered his judgment on 5 June 2009. Although the claimants had complained in their Particulars of Claim of exposure to prompt radiation, it was agreed early in the trial that none of the veterans had been sufficiently close to the explosions to have been affected by prompt radiation. 16. At the hearing, without issuing any application, the MOD invited the judge to strike out the claims or, in the alternative, to give summary judgment in favour of the MOD, on the ground that the claims had no prospect of success. Foskett J declined to do so, ruling that these requests were premature, since causation was essentially a question of fact and since the facts, dependent on lay and expert evidence, had not been established at the current stage of the proceedings. Moreover, he did not accept that the claimants’ case on causation was so weak that the claims were bound to fail. However, he accepted that, if any of the cases were to clear the limitation hurdle and proceed to trial, there was a risk that they might subsequently be abandoned because of difficulties in establishing causation, and stated that, if invited to do so by the defendant, he would consider how the Ministry of Defence could be protected in terms of costs and other adverse consequences should this occur. 17. On the limitation issue, the judge considered himself bound by previous case-law to hold that “knowledge” within the meaning of section 14(1)(b) of the 1980 Act in effect meant “belief”, so that each claimant acquired the relevant knowledge at the moment in time when he formed the belief that his injury was capable of having been caused by exposure to radiation. Following this approach, he examined each case to determine the moment at which the veteran had manifested not merely suspicion but a firm belief that his illness was attributable to exposure to radiation. He found that five of the lead claimants had not had knowledge of their claims, within the meaning of section 14 of the 1980 Act, until less than three years before they began proceedings, so they were entitled to proceed with their claims as of right. He further considered that the claims of the other five test claimants were prima facie statute barred, but exercised his discretion under section 33 of the 1980 Act so as to allow the actions to proceed. In particular, he emphasised that the need to avoid an apparent injustice, both in the minds of the claimants and of the general public, was a weighty factor to be taken into account. The judge awarded the claimants their costs, estimated at GBP 11.8 million, to be paid by the MOD. 18. The MOD appealed to the Court of Appeal, which gave judgment on 19 November 2010 (Ministry of Defence v. A.B. and Others [2010] EWCA Civ 1317). The Court of Appeal upheld the trial judge’s refusal to strike out the case, but on different grounds. They considered that the pleadings disclosed reasonable grounds for bringing the case and that as there had been no abuse of process nor failure to comply with procedural rules, it would be wholly inappropriate to strike the cases out. The Court of Appeal considered that the MOD’s application for summary judgment should be rejected on procedural grounds, because no formal notice had been given. 19. With regard to the limitation issues, the Court of Appeal applied broadly the same test as Foskett J, although it considered that in relation to nine of the ten test cases, he had applied too high a threshold. In the Court of Appeal’s view, only one case, that of Mr Sinfield (the first applicant’s husband), who was diagnosed with non-Hodgkin’s lymphoma in October 2005, had been brought in time. In relation to the discretion under section 33, the Court of Appeal held that the trial judge had erred in law in holding that the need to avoid an apparent injustice, both in the minds of the claimants and of the newspaper-reading public, was a weighty factor to be taken into account. The court further held that the broad merits test should be a prominent consideration when deciding whether or not to exercise the discretion. The resource implications both for the MOD and Treasury solicitors and for the courts would be enormous, and it would be inappropriate to allow an expensive and resource-consuming trial to take place if the prospects for the claimants’ success were slight. On the other hand, if the prospects of success “were even reasonable, those resource considerations fade into relative insignificance”. The Court of Appeal next examined the likely strength of the applicants’ case on causation. They observed that the burden of proving that the alleged tort caused the alleged injury lay on the claimant, on the balance of probabilities. In order to determine whether the section 33 discretion should be exercised, the court had to assess the broad merits of the material put before. The claimants had not produced evidence of how they intended to estimate the doses of radiation to which they were exposed and the court considered that the best they could hope for would be to show low but significant exposure. In addition, on the state of the evidence before the court, there was no prospect that the claimants would be able to satisfy the “but for” test of causation by showing that their illnesses were at least twice as likely to have been caused by their exposure to radiation during the tests than by other causes, for example, smoking. Nor was there any possibility, on the evidence as it stood, that the claimants would be able to rely on the synergistic inter-action of two different causative agents. The foundation of medical evidence had not been laid. The court therefore concluded that the claimants’ case on causation faced very great difficulties. They accepted that there was a theoretical possibility that further evidence might become available if the case were permitted to proceed, but nonetheless underlined that they had to apply the broad merits test under section 33 on the basis of the evidence which the claimants had put before the court. When considering, in relation to each of the nine time-barred test cases, whether to exercise its discretion under section 33, the Court of Appeal found that the merits of each case were weak on causation and that the prospects of success were therefore weak. In addition, the delay in bringing the claims would be prejudicial to the MOD, through the loss of available witnesses. In consequence, the court declined to exercise its discretion to allow the time-barred cases to proceed. 20. The Court of Appeal concluded with the following words: “We recognise that these decisions will come as a great disappointment to the claimants and their advisers. We readily acknowledge the strength of feeling and conviction held by many of the claimants that they have been damaged by the Ministry of Defence in the service of their country. The problem is that the common law of this country requires that, before damages can be awarded, a claimant must prove not only that the defendant has breached its duty of care but also that that breach of duty has, on the balance of probabilities, caused the injury of which the claimant complains. These can be heavy burdens to discharge. If we look back to 1985, Melvyn Pearce won a significant victory in the House of Lords, which established that the MOD could not rely on the immunity of the Crown from suit. Yet, within a few months of that victory, Mr Pearce abandoned his claim because his advisers recognised that they could not satisfy the burden of proving that Mr Pearce’s cancer had probably been caused by radiation exposure; for his personal position, the victory was entirely pyrrhic. As we noted earlier, the abandonment of that case comprised a warning to those who wished to follow after. Causation would be a potentially difficult issue and would have to be addressed if any such actions were to have a prospect of success. Thus, it was no surprise that one of the first steps taken by [the solicitors] originally instructed by Mrs Brothers, was to seek evidence to establish causation (which was not forthcoming). Further, although the MOD raised the issue of causation both generically and, later, in the individual cases, no attempt was apparently made when the lead cases were identified to obtain specific evidence on this topic. It may be that it is not yet possible for a doctor to say that a condition such as cancer has probably been caused by radiation as opposed to any of the other possible causes but, until such evidence is available, claimants will face the difficulty which caused Mr Pearce to abandon his claim. We have no doubt that it will appear that the law is hard on people like these claimants who have given service to their country and may have suffered harm as a result. No doubt partly with this background in mind, Parliament has provided that servicemen who have been exposed to radiation which might have caused them injury will be entitled to a war pension. Of course, a war pension is not as financially beneficial as common law damages but it is some compensation. Of particular importance on this issue, on an application for a war pension, the burden of proving causation is reversed; thus, the MOD has to exclude the possibility that the applicant has been harmed by radiation. We cannot say that any of these claimants who have, so far, not been awarded pensions will succeed in their attempts to do so but their chances of success must be far greater with the MOD having to prove the absence of causation than they ever were while the claimants had to establish it.” 21. The claimants were ordered to pay 90% of the MOD’s costs of the first instance trial on the preliminary issues of limitation, and all of the MOD’s costs of the appeal. These costs, in excess of GBP 5.6 million, were paid by the applicants’ ATE insurers. 22. The nine lead claimants who had lost before the Court of Appeal appealed to the Supreme Court, which gave judgment on 14 March 2012 (Ministry of Defence v. A.B. and Others [2012] UKSC 9). The Supreme Court was divided by four judges to three as to the application of the 1980 Act in this case. The minority (Lord Phillips, Lady Hale and Lord Kerr) held that the Court of Appeal had confused knowledge with belief and that, although the claimants believed that their injuries were caused by exposure during the nuclear tests at the time they issued their claim, they lacked knowledge of attributability because at that time there was no available scientific evidence. The majority (Lords Wilson, Walker, Brown and Mance) agreed with the Court of Appeal that “knowledge” should be equated to belief held “with sufficient confidence to justify embarking on the preliminaries of the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence”. The majority found that each of the nine appellants had believed that his exposure to radiation had put his health at risk and, on becoming ill, had believed that his illness was attributable to his presence during the nuclear tests, on that each had attained the requisite state of knowledge more than three years before the commencement of proceedings. It was conceded before the Supreme Court by counsel for the claimants that they lacked evidence with which to establish a credible case that the injuries were caused by the tests. The majority also agreed with the Court of Appeal’s approach to the exercise of discretion under section 33 of the 1980 Act and upheld the refusal to allow the claims to proceed. 23. All members of the Supreme Court agreed that the claims had no real prospects of success. Lord Phillips observed that: “The current difficulties facing the veterans in relation to causation appear to me to be very great indeed. The Rowland report assists them a little but it does not have the significance that [their counsel] has sought to attach to it. The Rowland report shows that many of the New Zealand veterans had a raised incidence of chromosome translocation that suggested exposure to abnormal, albeit low level, fall-out radiation. But this was not true of all the veterans assayed. The assays of some show no abnormalities. This is no more than one would expect. Exposure to radiation results from inhalation or ingestion of fall-out. It may result from swallowing sea water while swimming or eating contaminated fish. Thus it can vary from one man to the next. The most that can be deduced from the Rowland report is that it is probable that individual veterans were exposed to low level fallout. There is currently no evidence that there is any correlation between the raised incidence of chromosome translocation of individual New Zealand veterans and the incidence of cancer or any of the other conditions of which the claimant veterans complain. ... The Rowland report results simply constitute a biomarker suggesting exposure to radiation. The most the veterans as a group are currently in a position to establish is that there is a possibility that some of them were exposed to a raised, albeit low level, of fall-out radiation and that this may have increased the risk of contracting some at least of the injuries in respect of which they claim. This falls well short of establishing causation according to the established principles of English law. ... For these reasons I do not believe that the veterans’ claims have a reasonable prospect of success.” Lord Wilson accepted that the Court of Appeal had wrongly elevated the issue of causation to be the determining factor under section 33, but nonetheless concluded: “It is undesirable that a court which conducts an inquiry into whether a claim is time-barred should, even at the stage when it considers its power under section 33, have detailed regard to the evidence with which the claimant aspires to prove his case at trial. But the ten claims placed before Foskett J were of particular complexity; and the nature of the submissions made to him on behalf of the appellants about the meaning of knowledge for the purpose of section 14(1) of the 1980 Act led him to undertake, over ten days of hearing and expressed in 885 paragraphs of judgment, a microscopic survey of the written evidence available to the parties, in particular to the appellants, in relation to causation. At all events the result was to yield to the Court of Appeal an unusual advantage, namely a mass of material which enabled it with rare confidence to assess the appellants’ prospects of success. It expressed its conclusions in terms of the ‘very great difficulties’ which confronted the appellants in that regard. But, in line with the realistic concession made by [counsel for the appellants] in this court, the fact is that, for the reasons set out by Lord Phillips ... their claims have no real prospect of success. In my view it would have been absurd for the Court of Appeal to have exercised the discretion to disapply section 11 so as to allow the appellants to proceed in circumstances in which the next stage of the litigation would be likely to have been their failure to resist entry against them of summary judgment ...” 24. On 14 November 2012 the Supreme Court made an order relating to the costs of the appeal, which provided that the applicants should pay the MOD’s costs of the appeal and that the stay of execution in respect of the previous costs orders should be removed. 25. Following the above proceedings, one of the applicants (Ms Sinfield) had an absolute right to go forward to trial, since her case had not been found to be time-barred. The other applicants (whose cases had been stayed while the ten test cases went ahead) had to consider whether, in the light of the Supreme Court’s judgment, their claims were time-barred. A certain number of the applicants’ claims were not time-barred, because, like Mr Sinfield, they had become ill within three years of the commencement of proceedings. This group of applicants therefore wished to proceed to trial. The other applicants, whose claims were prima facie time-barred, took the view that much of the assessment of the Supreme Court, in relation to the question whether to exercise the discretion under section 33 of the 1980 Act, had been concerned with the difficulties that the claimants would face in establishing causation. However, the applicants considered that there was increasing evidence establishing that the illnesses they suffered were caused by exposure during the tests. This group of applicants also wished to proceed to trial. 26. Under the terms of the group litigation order, the MOD’s costs of the preliminary limitation proceedings were paid by all the claimants within the group, in equal proportions, whether or not their claims had been brought out of time. In a letter dated 12 September 2012, the MOD insisted that, before pursuing further litigation, the applicants had to obtain ATE insurance to cover them for the MOD’s costs should their claims fail. It proved impossible for the applicants to obtain such insurance, since the ATE insurers had already made large payments following the costs orders made by the Court of Appeal and Supreme Court. Legal aid, which was withdrawn in 2005, will not be re-awarded. None of the applicants is in a position to contribute to the funding of the litigation on a private basis. In consequence, none of the applicants’ claims proceeded to trial. 27. The background to the adoption of the Limitation Act 1980 (“the 1980 Act”) is set out in detail in the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 28-37, Reports of Judgments and Decisions 1996IV. 28. Section 11 of the 1980 Act deals with special time limits for actions in respect of personal injuries and, in its relevant parts, reads as follows: “11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ... ... (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4) Except where subsection (5) below applies, the period applicable is three years from— (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured...” 29. Section 33 of the 1980 Act further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms: “(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which— (a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. (4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased. (5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit. (6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976...”