COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
His Honour Judge Bullimore
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE LAWRENCE COLLINS
| JOHN FIELD
|- and -
|BRITISH COAL CORPORATION
(Department for Business Enterprise and Regulatory Reform)
Mr. Richard Copnall (instructed by Nabarro) for the respondent
Hearing date : 16th July 2008
Crown Copyright ©
Lord Justice Moore-Bick :
"11.— Special time limit for actions in respect of personal injuries.
(1) This section applies to any action for damages for negligence, nuisance or breach of duty . . . . 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.
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(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."
"14. — Definition of date of knowledge for purposes of sections 11 and 12.
(1) . . . . in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts
(a) that the injury in question was significant;
. . . ;
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
"33.— Discretionary exclusion of time limit for actions in respect of personal injuries or death
(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 . . . . 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."
"My view of the law was that the claimant objectively was to be taken as having constructive knowledge as at December 1998 though he had no subjective knowledge of the fact and cause of his hearing impairment until his surgeon advised in November 2003. My decision was based on the Catholic Care case and counsel's argument strongly suggests I misunderstood that and other authorities."
"1) It seems to me unsatisfactory that a claimant who is unaware of his condition and so not in a position to take any action or seek advice should nonetheless be held to have been aware.
2) The judgments in Catholic Care etc v Y  EWCA Civ 1534 and paragraphs 45 & 86 in particular in imposing an objective test under s.14(2) of L.A. '80 do not appear to give weight to 'whether the person whose date of knowledge is in question' points to a subjective assessment (at least in part) . . . ."
"In my view, therefore, I do not have to consider why the claimant did not consider he had suffered an injury (i.e. an impairment of hearing not simply resulting from wax and/or infection), or what personal characteristics led to that conclusion, but only whether a reasonable man in his position would have done so. Having reviewed the various entries, it seems to me that the drivers' examination on 25 March 1998 when no abnormality was detected in either ear and the fact the clamant seems to have been aware that he had a hearing problem, are the latest point in time when a reasonable man in his position would have considered there was a significant injury as defined in the Act. At the very least, at that point, he would have sought medical help to determine the nature of his injury, i.e. why despite the absence of wax or infection, his hearing was impaired. That would have been reasonable for him to seek, and overall it would have been knowledge he might reasonably have been expected to acquire. On the facts, I do not think that an earlier date should be taken; it is only in March 1998 that he was aware that there were no problems of wax or infection that could account for his hearing problem."
"For those reasons, but with regret, because I do not consider the clamant himself was aware he had a hearing problem not attributable to wax or infection until he had received Mr. Clegg's report, I do not consider this is a case where I ought to disapply the effect of section 11." (Emphasis added.)
"Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally "subjective" in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed "objective" knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would "reasonably" have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
Lord Justice Lawrence Collins:
Lord Justice May: