England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 98/1315/2

Royal Courts of Justice

Wednesday, 26th May 1999

Before:

LORD JUSTICE HENRY

MR. JUSTICE HOLMAN

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IRSHAD ALI Appellant

-v-

COURTAULDS TEXTILES LIMITED

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(Handed down transcript of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040 Fax: 404 1424

Official Shorthand Writers to the Court)

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MR. T. RIGBY (instructed by Messrs Susham Lal, Oldham) appeared on behalf of the Appellant.

MR. K. NAZIR (instructed by Messrs Warner Cranston, Coventry) appeared on behalf of the Respondent.

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APPROVED JUDGMENT

Crown Copyright

Lord Justice Henry:

Mr Irshad Ali is a citizen of Bangladesh, who came England aged 32 in 1958 and this has been his principal place of residence ever since. For approximately 20 years from 1969 on and off until 1988 he worked for the defendants in two cotton mills of theirs in Lancashire. In his sixties he suffered from deafness, and on 5th May 1995 (two years after the letter before action) he started proceedings against the defendants alleging that his deafness was noise induced, and caused by his employers’ failure to take reasonable steps to protect him from that noise. The defendants, who had originally taken the stance that the only issue was causation, at the last moment took a limitation defence. This was argued as a preliminary point before Mr Assistant Recorder Sycamore, sitting at the Oldham County Court. That defence succeeded, the judge finding that 1) the action was not brought within the primary limitation period as calculated under Sections 11 and 14 of the Limitation Act, 1980, and 2) this was not a case where it would be equitable for the court to allow the action to proceed in the exercise of its discretion under Section 33 of that Act. Against those findings the claimant now appeals. We heard argument on the first point, and in the light of our conclusions on that point, did not find it necessary to go on to hear submissions on the second.

The relevant statutory provisions defining the issues before us are Section 11, sub-sections 1, 2, 3 and 4, and Section 14, sub-sections 1, 2 and 3, which are set out below:

"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 (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.

[(1A) ...]

(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) [Subject to subsection 1A below], 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; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

and knowledge that any acts or omissions did or did not, as a matter of law, involved negligence, nuisance or breach of duty is irrelevant.

[(1A) ...]

(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 that 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, act on) that advice."

The side-lined passage is crucial to this case, and I refer to it as “the proviso to section 14(3)”.

The first question for the judge to consider, under section 14(1)(a), was when the applicant first had knowledge that the injury in question was significant. The judge noted that while he had first visited his general practitioner to complain of deafness in one ear in 1986, there had been no further visits until 1990, when in September the GP noted that the claimant had been unable to hear for six months. The judge found that that was the date when the claimant knew that his injuries were significant, and against that finding there is no appeal.

The active question on this appeal arises when the claimant first had knowledge of the facts defined in section 14(1)(b) that his deafness was attributable to his employers’ failure to provide proper protection against the noise in the mills, ie that it was noise-induced, and not age-induced. Section 14(3) includes certain constructive knowledge, but is subject to the proviso already referred to.

In this case it is in my judgment essential to that enquiry into the claimant’s actual and constructive knowledge that regard is had to the man he is. Though he has lived in England for approximately 40 years, his English is very limited, and he had to give evidence through an interpreter. Additionally, he cannot read or write in either his native language or in English. Though he had been a member of the trade union at the dates we are here concerned with, from 1990 onwards, he was not in employment and was not in touch with his union. He had legal aid to fund his action.

The next background fact is that the question whether deafness in a man in his sixties was caused by the ageing process or was caused by unprotected exposure to noise at work is a question for medical expertise. At the same time as the defendants allege that the claimant “knew that his deafness was attributable to exposure to noise” they were relying on their own expert’s report that, subject to further tests, there was nothing in the pattern of his pure tone audiometry to suggest noise exposure as a cause of the deafness, and that the “genuine conductive loss” originated from childhood otitis media:

"which would have protected his ears as effectively as reasonable quality earmuffs with the advantage that it cannot be left off."

Coming to the specific facts, the judge, having found actual knowledge that the deafness was significant in early-1990, noted that the claimant had shortly thereafter been referred to Dr Siddiqui, a registrar in ENT surgery at the Royal Oldham Hospital. He saw Dr Siddiqui who wrote a short report on him to the general practitioner which comments that “he has worked in the mill all his life” but having found no abnormalities, concluded:

"... he has a bilateral sensory neuro-deafness on one side, and would benefit from a hearing aid."

Mr Nazir for the defendants seeks to rely on that letter as capable of informing the claimant that his deafness was noise induced. In my judgment that submission fails for a number of reasons.

It is not what the letter says. Read as a whole, the letter does not link the deafness with the noise in the mill. The judge rightly made no finding that the letter was in any way significant, nor did Mr Nazir put in a respondent’s notice relying on that letter.

But the judge did rely on an episode later in that year, in November 1991, when a Mr Maqsood Ali, a community worker, called at the claimant’s home. The claimant failed to answer the door because he had not heard him ring or knock. The judge held that the claimant in his evidence had said that Mr Ali had told him that this sort of a problem could be caused by working in a cotton mill, and that he should consult a doctor and a solicitor.

That seems reasonable because the claimant went to consult solicitors the very next day. He said that before he spoke with Mr Ali he did not know that people could be made deaf by working in a cotton mill.

A legal aid certificate was sought and obtained. That certificate was initially limited to the obtaining of a medical report. For that medical report the solicitors then acting for the claimant arranged for him to be medically examined by a consultant ENT surgeon, Mr Sharma, whose registrar Mr Siddiqui was. That examination took place in August 1992, and on 20th August Mr Sharma reported, concluding:

"Mr Ali’s hearing loss is more likely than not caused by exposure to industrial noise. He also complained of constant ringing noises in his ears. In my opinion his tinnitus is more likely than not caused by exposure to industrial noise."

Mr Ali’s evidence is that he was told of that a week or so later, and that would seem right, because the legal aid certificate was amended to permit the commencement of proceedings on 15th September 1992.

On those facts the judge’s reasons are encapsulated in this paragraph:

"Having heard the evidence in this case I am satisfied that the plaintiff accepted and acted on the advice of Mr Maqsood Ali in November 1991. At that time he, the plaintiff, believed that deafness was capable of being attributed to the exposure to noise in the cotton mills. On his own account he made an appointment to see the solicitors the following day. At that time, in my judgment, the plaintiff was clear in his mind of the connection there was between his condition and his working environment and he sought advice on whether, and if so how, he could claim compensation."

The reasons leading to those conclusions are set out in the preceding paragraph of the judgment. As will be seen, there was a total failure by the judge to consider what I have called the proviso to section 14(3):

"... 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, act on) that advice."

I set out below what I consider, as a matter of construction, to be the scheme of the Act as it applies to this case.

The claimant knew he was deaf. The claimant knew, once Mr Maqsood Ali had told him, that exposure to noise could cause deafness. Equally, he would know that the ageing process could cause deafness. But he did not and could not know whether his deafness had been caused by ageing or noise. Nor could Mr Maqsood Ali, nor his solicitor, nor any other layman. He could only find that out with the help of expert advice.

But he could not obtain a limitations advantage by claiming that his experts kept him in the dark - thus his constructive knowledge is extended by section 14(3) to “knowledge which he might reasonably have been expected to acquire” from his medical expert advice. We know he did not get that medical expert advice until his solicitor reported that advice to him in September 1992. He had sought that advice by going to his solicitor, but the judge found that the mere fact of seeking that advice (which necessarily had to be medical) fixed him with knowledge. That conclusion flies in the face of the proviso to subsection (3), which applies because:

• knowledge as to whether deafness was noise-induced or age-induced was ascertainable only with the help of medical expert advice;

• he had not had any such advice when the judge found constructive knowledge against him;

• he had taken all reasonable steps to get that advice the moment Mr Maqsood Ali had alerted him to the possibility. The appointment with the specialist was eight months on, but no one suggests that that was caused by the failure of either the claimant or his solicitor to take all reasonable steps. Appointments with busy specialists were subject to such delays at this time, as Access to Justice research revealed.

So the proviso to section 14(3) applied: he should not be fixed with knowledge that his deafness was noise-induced because that question was only ascertainable by him with expert advice, which it was not only reasonable, but essential he obtained before he did anything else. Here the limitation on his legal aid certificate reflected what a solicitor dealing with a privately funded case would have told him: “I cannot tell you whether your deafness is age-induced or noise-induced. But I can tell you that there is no point your spending any money until you have ensured that you can call expert medical evidence to show that it is noise-induced. Without that evidence you will have no case.”

In the analysis above I have used the plain words of the statute. When properly analysed the authorities, as one would expect, show the same pattern whenever one is dealing with a situation where expert medical knowledge beyond the scope of even an informed and intelligent layman is necessary to establish the cause of the personal injury which founds the action. Clearly what has to be “known” on the facts of each individual case will determine where the division between knowledge, belief and suspicion are drawn.

These are cases which Lord Donaldson MR described as “unusual” ( Halford -v- Brookes [1991] 3 AER 559 at 573), in his commentary on Davis -v- Ministry of Defence (1985, Times 7th August), where he quoted with approval May LJ and continued:

"‘“Knowledge” is an ordinary English word with a clear meaning to which one must give full effect: “reasonable belief” or “suspicion” is not enough. The relevant question merits repetition: when did the appellant first know that his dermatitis was capable of being attributed to his conditions at work?’

To ‘attribute’ means to ‘reckon as a consequence of’. Mr Davis did not know that he could reckon his dermatitis as a consequence of the conditions of his employment until the expert’s advice to the contrary was withdrawn, although all along he reasonably believed or suspected that it could."

To like effect, we have Purchas LJ in Nash -v- Eli Lilley & Co (the Opren case - [1993] 4 AER 395).

Mr Assistant Recorder Sycamore relied on distinguishing Nash in his reasons leading up to his decision. I quote the paragraph in its entirety:

"In my judgment ‘attributable’, in the context of Section 14(1)(b) means ‘capable of being attributable’. It does not require certainty of connection but sufficient to be satisfied that the injury complained of was capable of being attributed to the act or omission in question. This will depend upon the circumstances of the individual case. To adopt the approach urged on the Plaintiff’s behalf would effectively postpone the date of knowledge until a much more advanced stage of enquiry. The facts in Nash can be distinguished from those in the present case. In Nash the Court was concerned with a number of Plaintiffs who were concerned to establish whether there was a causal connection with their having taken a drug and the symptoms which they experienced. In that case the Court accepted that belief should be confirmed by a doctor and until that time a Plaintiff did not have requisite knowledge. In general terms however a Plaintiff has requisite knowledge when broadly he knows enough to make it reasonable to begin to investigate whether or not there is a case against the Defendant. The step of instructing solicitors to seek advice can demonstrate that requisite knowledge."

My comments on that passage are as follows:

1) Mr Ali’s case is a case where he could only be satisfied that his deafness was noise-induced after receiving medical advice confirming that;

2) For reasons already given, knowledge of the medical cause must be the first step in the inquiry;

3) Nash is indistinguishable in that the court here should apply the proviso to section 14(3) on the basis that ‘belief should be confirmed by a doctor, and until that time a plaintiff would not have requisite knowledge’.

This is made clear by Purchas LJ at 395e:

"... whether a claimant has knowledge depends both upon the information he has received and upon what he makes of it. If it appears that a claimant, while believing that his injury is attributable to the act or omission of the defendant, realises that his belief requires expert confirmation before he acquires such a degree of certainty of belief as amounts to knowledge, then he will not have knowledge until that confirmation is obtained. Frequently, as it seems to us, it will be safe for the court to proceed upon the basis that a claimant did realise that he required confirmation if he acted in a manner consistent with that state of mind even if he is, as he may frequently be, unable to recall with any degree of precision what his state of mind was. Conclusions as to a claimant’s state of mind will, we think, usually be more securely based upon inference from conduct in the known circumstances than from a claimant’s later assertion as to how he now recalls his then state of mind as between, for example, belief or knowledge."

And at 396b:

"(4) By s 14(3) ‘knowledge’ for the purposes of 14(1) includes knowledge reasonably expected to be acquired. There will be cases in which a firmly held belief actually held by the plaintiff precluded consideration of any further steps which he might reasonably have taken to acquire from knowledge of further facts before initiating proceedings. In other cases the state of the plaintiff’s belief would make it reasonable for him to make the further enquiries envisaged in s 14(3). The temporal and circumstantial span of reasonable enquiry will depend on the factual context of the case and subjective characteristics of the individual plaintiff involved.

(5) It is to be noted that a firm belief held by the plaintiff that his injury was attributable to the act or omission of the defendant, but in respect of which he thought it necessary to obtain reassurance or confirmation from experts, medical or legal, or others, would not be regarded as knowledge until the result of his enquiries was known to him or, if he delayed in obtaining that confirmation, until the time at which it was reasonable for him to have got it. "

That is the proviso to section 14(3) in action. The judge should have employed it, but he did not.

Likewise, this case comes within the third category of principle (4) in Brooke LJ’s analysis in Spargo -v- North Essex District Health Authority [1997] PIQR, 235 at 242:

"(4) ... she will not have the requisite knowledge ... if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was."

I would allow this appeal and hold that the proceedings were here brought within the primary limitation period as calculated under sections 11 and 14 of the Limitation Act, 1980.

MR JUSTICE HOLMAN: I agree.

Order: Appeal allowed; costs of and occasioned by Limitation Act issue to be of the claimant; such costs to be assessed and payable forthwith in the event the claimant succeeds in his claim for damages; legal aid taxation; application for leave to appeal to House of Lords refused.