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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212 (7 July 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/212.html
Cite as: [2000] EWCA Civ 212, [2000] PIQR P213
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Case No.B2/1999/1220
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH Judge ANSELL
Date: Friday 7 July 2000
LORD JUSTICE SIMON BROWN
LORD JUSTICE JUDGE
- and -
MR JUSTICE BELL
- - - - - - - - - -
JOSEPH SNIEZEK
Claimant and Respondent
BUNDY (LETCHWORTH) LIMITED
Defendant and Appellant
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Mr Patrick Vincent (instructed by Berryman Lace Mawer Solicitors, London) for the Defendant/Appellant.
Mr Phillip Head (instructed by Messrs Woodfine Batcheldor Solicitors, Bedford) for the Claimant/Respondent.
As Approved by the Court
Crown Copyright ©
MR JUSTICE BELL:
1. This is the defendants' appeal against the judgment of His Honour Judge Ansell at Luton County Court on 27 July 1999 on the trial of a preliminary issue of whether Mr Joseph Sniezek's claim for damages for personal injuries and consequential losses is barred by the provisions of the Limitation Act 1980.
2. The judge found that Mr Sniezek's claim was brought outside the limitation period calculated in accordance with the provisions of sections 11 and 14 of the Act, but he exercised his discretionary power under section 33 to direct that the provisions of sections 11 and 14 should not apply to the claim, so allowing the claim to proceed.
3. Section 11 of the Act applies to this personal injury claim by virtue of section 11(1).
Section 11(3), so far as it is material to this case, provides that an action to which section 11 applies "shall not be brought after the expiration of the period applicable in accordance with subsection (4) ....."
Section 11(4), so far as it is material, provides that:
" ...... 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."
4. Section 14, so far as it is material, provides:
"(1) ...... in section[s] 11 .... 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 knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."
(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 be 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."
5. The material provisions of section 33 are as follows:
"(1) if it appears to the court that it would be equitable to allow an action to proceed having regard to the degree 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.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
(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 ...... ;
(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."
6. For the purpose of the preliminary issue the essential, primary facts are that the claimant was born in Hungary in August 1936. He came to this country in 1956. The judge heard him give evidence and concluded that his use of English is not good.
7. He started working for the defendants in 1972 and became a chargehand cleaner in March 1982. In about late 1983 he was made responsible for the cleaning of an enclosed area which was devoted to a new process of coating tubes with a green polymer. The tubes were dipped in a liquid and sprayed with a polymer powder before being baked in an oven room within the enclosed area.
8. The claimant was provided with special clothing and a filtered mask to protect him from the dust which he collected in the cleaning process, but his case is that lack of facilities to wash dust from the clothing before it was removed and inadequacy of the mask (until it was replaced with a helmet in about 1985) led to him inhaling dust while cleaning and when removing the suit. He complains that in early 1984, within two months or so of starting the particular cleaning work, he became aware of a burning sensation on his lips and in his throat. His sore throats were bearable to start with. He did not think he was suffering a permanent injury. He thought it was irritation from the dust, but by March 1988 his symptoms were severe. He stopped doing the work in question in March 1988 for orthopaedic reasons, but symptoms in his mouth and throat are alleged to have continued and caused psychological damage. He was dismissed from his employment in March 1989.
9. It is clear from the transcript of the claimant's evidence to the judge, that from the very first the claimant has been convinced in his own mind that his problems have been caused by inhaling dust at work. From early 1984 he complained about his working conditions to his immediate superior, a Mr Gazely. He remained convinced that he suffered from throat problems which were caused by the dust at work despite expert advice to the contrary.
10. The claimant had first consulted his GP in August 1984 and he was referred to an ENT clinic but he failed to attend.
11. He claims that he told his works medical officer about his throat condition in January 1989.
12. In April 1989 his GP referred him for an ENT opinion for constant burning in the throat and difficulty in swallowing. The consultant found no abnormality in throat, nose or ears.
13. In May 1990 his GP referred him to hospital because he was coughing blood and had a sore throat, but investigations were clear.
14. In the same year he went to see Robin Thompson and Partners, his union solicitors, who requested a report on "the relation between his respiratory problems and his work" from Dr R.M. Rudd, Consultant Physician and well known expert witness. Dr Rudd examined the claimant in December 1990 and took a detailed history. In January 1991 he reported to Robin Thompson and Partners that the claimant did not have any discernible physical disability and that there was no evidence to support the view that any of his symptoms were attributable to his work. Dr Rudd expressed the view that it was clear that anxiety and hypochondriasis were the main cause of the claimant's wide ranging symptoms.
15. Following further complaints, however, the claimant was referred to the ENT clinic at the Middlesex Hospital in the middle of 1992. Dr Bari, a hospital doctor, wrote to the claimant's GP that a barium swallow revealed no abnormality in the pharynx or oesophagus but that in his opinion the burning sensation in the claimant's throat was most probably due to the chemicals and fumes that he worked in for seven years. He feared that nothing could be done for that. That opinion can be taken to offer some support for a harmful effect of the claimant's working conditions, but no hard support for a diagnosable injury, in my view. Moreover nothing abnormal was found on examinations at the Middlesex Hospital in January 1993.
16. The claimant consulted his present solicitors on 31 December 1992. They instructed Mr P.J. Robinson, a Senior ENT Registrar at the Middlesex and University College Hospital, who examined the claimant in October 1993. On 20 January 1994 Mr Robinson reported on the claimant's lip, mouth and throat symptoms as follows:
"My medical examination of the claimant did not find any other cause for his symptoms, but in view of the subjective nature of the symptoms it is also difficult to prove that he is actually experiencing the symptoms. However, it seems likely that given the history of exposure to an apparent polymer in a hot environment, that he may well have suffered from some hypersensitisation of his upper aerodigestive tract, which has left him with symptoms of a burning sensation of the lips and throat and discomfort on swallowing."
17. In May 1994 counsel (not Mr Head who appeared for the claimant at the trial of the preliminary issue and on this appeal) advised that he was satisfied that there was a factual and contemporaneous link between exposure to the defendant's polymer dust and the claimant's symptoms but he required to know the nature of the polymer and the associated risks.
18. In January 1995 a laboratory tentatively identified chromium in the filter of the claimant's face mask, retained after leaving the defendants. Strange, Strange and Gardner were instructed. In October 1995 they reported that they needed to know the chemical composition of the material used to coat the defendant's pipes especially the hardening agents since some types of agents were known to cause respiratory problems. They suggested that the defendants must have the necessary information. They deferred the question of attribution of the claimant's condition to expert medical opinion.
19. In February 1996 counsel advised pre-action discovery. That was promptly started but largely, as the judge found, because of opposition by the defendants, even to the extent of non-compliance with a court order, it was not until 30 June 1997 that the defendants identified the material coating powder. It transpired that it contained Trimetallic Anhydride (TMA).
20. Towards the end of 1997 Professor Peter Hewitt reported descriptions of TMA as a long established and recognised respiratory sensitiser and irritant with effects on the nasal mucosa.
21. In January 1998 Mr Robinson, by then a consultant otolaryngologist, concluded that there might be a basis for some of the claimant's symptoms having occurred as a result of exposure to the powder containing TMA, but that there was a large psychological overplay involved.
22. In June 1998 counsel advised that the claimant had a reasonable case against the defendants, and his legal aid certificate was enlarged to allow these proceedings to be issued on 14 September 1988. The Particulars of Claim complain of the hazards involved in exposure to TMA and chromium.
23. Against that factual background the judge rejected the defendant's contention that from 1984 the claimant had knowledge that his injury was significant and that it was attributable to the act or omission of the defendants for the purposes of section 14(1) of the Act, saying:
"I reject the defendants' contention in this case that the claimant had knowledge from the start. He may have had a belief from the start, but that was not knowledge for the purposes of the Act. Indeed, there is clear evidence in this case that, notwithstanding what one might even term a strong belief on his part, he recognised the need to get both medical and legal advice, which he did on a number of occasions, consulting two sets of solicitors and I think going to specialists on four or five occasions."
24. The judge found difficulty in deciding whether the claimant's knowledge could be said to arise as late as 1997 as was contended for the claimant. However, he concluded that the relevant date of knowledge was January 1994, the date of Mr Robinson's report, but went on to conclude that this was a clear case for the exercise of his discretion in the claimant's favour under section 33 to allow the claim to continue.
25. The challenge of Mr Vincent to the judge's conclusion on the date of knowledge was founded on the proposition that where a claimant is convinced that he is suffering from a significant injury which is attributable to his employer's failure to provide a safe system of work, and remains so convinced despite medical or other expert advice to the contrary, his firm belief is to be treated as knowledge for the purposes of section 14. In the present case the claimant thought that his throat condition was sufficiently serious to consult his GP in August 1984. The threshold of significance is not high since the statutory test assumes a defendant who does not dispute liability. There is ample authority that the word "attributable" in section 14(1)(b) means no more than "capable of being attributed to", and there was no candidate other than the claimant's working conditions. So the claimant had the necessary knowledge of significant injury and attribution in 1984 and the preliminary limitation period of three years began to run then.
26. Mr Head contended that it flies in the face of common sense to suppose that the claimant had knowledge of an injury which was significant when he was repeatedly advised that he had no injury at all. In the light of that advice the claimant could not be said to have had knowledge of any injury, let alone one significant enough to justify instituting proceedings. Occupational disease cases are potentially technical, and no reasonable person having taken the reasonable steps which the claimant took to seek medical and other appropriate expert advice would have considered that he had an injury which was sufficiently serious to justify his instituting proceedings for damages. The question in the present case, until July 1997, or January 1994 at the earliest, was whether any injury existed at all. It was not the usual issue of whether a known injury was capable of being attributed to a putative factor, which was a lower threshold test than that which was required for knowledge of significant injury.
27. Case authority on the application of section 14 of the 1980 Act is copious. We were referred to five cases in particular.
28. Davis v. Ministry of Defence, Court of Appeal (Civil Division) Transcript No.413 of 1986, was an application to strike out. The issue was upon what date the Plaintiff first knew that his acknowledged dermatitis was attributable to his employer's failure to provide him with safe working conditions. The judge found that the Plaintiff had never ceased to associate his dermatitis with conditions during his employment, and that he knew that his injury was attributable to the material act or omission in the sense that he knew or believed and was convinced that it was capable of attribution to that and to nothing else.
29. Of this, May L.J. said at page 9 D-G of the transcript:
"With all respect to the learned judge, I think that he wrongly assimilated what the appellant firmly believed throughout to what he knew. I have no doubt, as I have said, that the appellant has always believed that his dermatitis was due to his employers' fault and that he had a good claim against them. However, it is clear that he was advised that he did not and the combined state of mind of the appellant himself, as a layman, and that of his doctors and legal advisers, which must be attributed to him by section 14(3) of the 1980 Act, cannot, in my opinion, so surely be said to have been such that they knew, prior to the 10th November 1978 that the dermatitis was capable of being attributed to the appellant's working conditions."
He took the view that on the evidence it would be wrong to strike out the Plaintiff's claims.
30. In my view, however, Davis did not survive Nash v. Eli Lilley & Co. [1993] 1 W.L.R.782. In that case the Plaintiffs claimed that their injuries arose from their treatment with Opren. There was a preliminary issue as to whether their claims were statute barred.
31. At page 795E to 796A, the Court pointed out that the appeal in Davis was not from trial of a preliminary issue upon evidence:
"The decision does, however, appear to regard as arguable the contention that, if a claimant is shown to have had knowledge, as we understand the meaning of that word in this context, that the injury is attributable to the act or omission of the defendant, the subsequent obtaining of expert advice for the purpose of legal proceedings which says that the injury is not so attributable, could retrospectively cause him never to have had such knowledge. We do not accept that that contention is arguable. It seems to us to be in conflict with the words of the statute.
The answer to the problem, we think, is to be found in the way in which the court should, on the facts, approach and decide the question whether and when a claimant's state of mind amounted to knowledge for the purpose of sections 11 and 14 of the Act. As we have said above, 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 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. We add that we have difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge."
The antithesis between belief and knowledge which counsel for Nash and others sought to derive from Davis was, "for the purposes of section 14(1) a false antithesis": page 796B.
32. The judgment of the court continued, at page 796 C-H:
"3. The period of limitation begins to run when the plaintiff can first be said to have knowledge of the nature of his injury to justify the particular plaintiff taking the preliminary steps for the institution of proceedings against the person or persons whose act or omission has caused the significant injury concerned.
4. By section 14(3) "knowledge" for the purposes of section 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 further enquiries envisaged in section 14(3). The temporal and circumstantial span of reasonable inquiry will depend on the factual context of the case and the 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 results of his inquiries 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. If negative expert advice is obtained, that fact must be considered in combination with all other relevant facts in deciding when, if ever, the plaintiff had knowledge. If no inquiries were made, then, if it were reasonable for such inquiries to have been made, and if the failure to make them is not explained, constructive knowledge within the terms of section 14(3) must be considered. If the plaintiff held a firm belief which was of sufficient certainty to justify the taking of the preliminary steps for proceedings by obtaining advice about making a claim for compensation, then such belief is knowledge and the limitation period would begin to run."
33. In Spargo v. North Essex District Health Authority [1997] PIQR P235 the issue was the date when the plaintiff knew that her sufferings were attributable to a misdiagnosis of organic brain damage. The judgment of the Court of Appeal was given by Brooke L.J. with whom both Waller L.J. and Nourse L.J. agreed. At page P242 Brooke L.J. drew the following principles from a number of authorities including Nash v. Eli Lilley & Co:
" (1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) "Attributable" in this context means "capable of being attributed to", in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or 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."
He added:
"In order to see whether section 14(1)(b) is satisfied in the present case, it is first necessary to identify the injury of which the plaintiff had actual knowledge for the purpose of section 14(1)(a). This was not a case of traumatic injury or shock-induced psychiatric injury, such as would not give rise to any particular problems of identification."
34. At P244, Brooke L.J. referred to the view of the judge that:
"It does not seem to me that it is a fair or correct approach to say that because an individual, for reasons which may be good or may be bad, has a certainty in his own mind as to the connection, that in itself means that he has the requisite knowledge if, looked at objectively, it is perfectly plain that no layman would be able to know (as opposed to believe) that the connection existed without the assistance of some expert advice."
If transposed from the issue of attribution to the issue of significant injury, that view seems to me to be much the same as Mr Head's argument in the present case, but Brooke L.J. said of it, and other passages in the judge's judgment:
"In my judgment, in all these passages the judge is substituting the much tougher test of proof of causation for the much less rigorous statutory test of attributability, in the sense that the identified injury was capable of being attributed to the identified omission. The test is a subjective one: what did the plaintiff herself know? It is not an objective one: what would have been the reasonable layman's state of mind in the absence of expert confirmation? After all, the policy of Parliament, in these cases which would otherwise be statute barred, is to give a plaintiff who has the requisite low level of knowledge, three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge's approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed."
35. In O'Driscoll v. Dudley Health Authority [1998] Lloyd's Rep.Med.210 the judge of the preliminary issue held that the plaintiff did not have actual knowledge that her injuries were caused by events at her birth at any time before seeing her expert's report. Simon Brown L.J. said of the argument of counsel to the claimant which centred upon a distinction between knowledge and belief, at pages 221 and 222:
"In my judgment, however, the argument is an impossible one. Not least, as stated, it demonstrably conflicts with the third Spargo principle: a firm belief in attributability which takes a plaintiff to a solicitor for advice is to be regarded as the requisite knowledge. The logic is plain: once one recognises, as Lord Donaldson pointed out in Halford v. Brookes [1991 1 WLR 428 ....... that knowledge in this context does not mean knowing for certain, knowledge and belief inevitably shade into each other. Knowledge here is, after all, only of the real possibility of causation. I had thought at one stage of the argument that Mr Lewis's best hope lay in equating the plaintiff's state of mind with that identified in the fourth Spargo principle as one not involving the requisite knowledge, namely
" ... 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."
The difficulty with this, however, is that it would put the fourth Spargo principle into conflict with the third. The fourth principle, in my judgment, must be read as postulating a situation antithetical to that covered by the third principle; i.e. the fourth principle postulates a state of mind short of a firm belief which takes a potential claimant to a solicitor.
So as to clarify further the contrast between principles three and four, I would just add that the reference in principle four to the "need to check with an expert" is a reference to the need for an expert's opinion before even the claimant can be said to know that the attributability of her condition to a particular "act or omission" is a real possibility. (It is in that situation, of course, that the question of constructive knowledge arises.) That is not the same investigation as is referred to in the first limb of principle three; this latter is an investigation into whether the plaintiff "has a case against the defendant" - what Brooke L.J. later in his judgment called
" ..... enquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to an actionable negligence."
an investigation which must be carried out whilst the limitation clock is ticking."
36. Finally, in Ali v. Courtaulds Textiles Limited [1999] Lloyds Rep.Med.301, the main preliminary issue was whether the plaintiff knew that his deafness was attributable to industrial noise, as opposed to age, when he was told by a community worker that it could have been caused by his work in a mill, or only when a consultant ENT surgeon later reported that it had probably been caused by exposure to industrial noise. The judge found that the plaintiff had the necessary knowledge when he accepted the advice of the community worker and promptly made an appointment to see solicitors:
"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."
37. Henry L.J., with whom Holman J. agreed, held that there was a total failure by the judge to consider the proviso in the last lines of section 14. The plaintiff did not and could not know whether his deafness had been caused by ageing or noise; 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 such advice when the judge found constructive knowledge against him, and he had taken prompt and reasonable steps to get that advice.
"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."
38. At page 305, Henry L.J. said:
"(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 the 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.""
39. Henry L.J. referred to the passages from Nash which I have already quoted, and continued:
"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 L.J.'s analysis in Spargo ...... :
(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 what it was."
40. The judge in the present case relied heavily upon Ali for its interpretation of Nash. However, the difficulty which I have in applying Ali to the facts of the present case is that in my view it is the third principle in Spargo which is particularly relevant to the facts of the present case, whereas it was the third category of the fourth principle which was judged to apply to Ali.
41. I must confess that I do not find all that was said in Nash easy to understand. Not all the principles which were expounded in the judgment in that case appear to me to be readily reconcilable with each other, particularly when brought to bear on the circumstances of this case where the claimant continued to believe that he had an injury which had been caused by conditions at work, despite repeated expert advice to the contrary. I have come to the conclusion, however, that for the purposes of the present case the vital effect of what was said in Nash, Spargo and O'Driscoll is to distinguish between a claimant who has a firm belief that he has a significant injury, attributable to his working conditions, especially one which takes him to a solicitor for advice about a claim, a belief which he retains whatever contrary advice he receives, and a claimant who believes that he may have, or even probably has, a significant injury which is attributable to his working conditions, but is not sure and feels it necessary to have expert advice on those questions. The former has knowledge of significant injury and attribution for the purposes of section 14; the latter does not. In my view, Mr Sniezek fell into the former category before the date of knowledge chosen by the judge.
42. Although the cases to which I have referred related to the question of knowledge of attributability with its low threshold of a real possibility, only, of causation, I believe that the essential principle must be the same so far as knowledge of significant injury is concerned, while interpreting "significant" injury in accordance with section 14(2).
43. In these circumstances I do not consider that the judge's decision on the date of knowledge can be sustained. It was not sufficient, to postpone knowledge, that the claimant recognised the need to get both medical and legal advice, and that the advice was adverse until January 1994.
44. I can not accept Mr Head's submission that a claimant can not know that he has an injury or that it is significant, just because medical experts advise that no injury can be found, which was the situation for so long in the present case. Whatever may be said about difficulties of attribution, a claimant such as Mr Sniezek either feels a sore throat, and burning lips, and has difficulties swallowing, as Mr Sniezek claimed from an early stage, or he does not. However, I am not persuaded that he had a firm belief that his injury was significant from 1984. He complained of throat symptoms then, but the judge was prepared to accept his evidence that he found his condition bearable and that he did not believe that he was suffering from any permanent injury, in the early stages. In my view that is consistent with his failure to attend the first ENT appointment arranged in 1984. The extent of his complaints between 1984 and 1987 is unclear to me, but by 1988 he was complaining of severe symptoms. He went to see his GP, complaining of his symptoms in April 1989, by which time he had suffered from throat symptoms for five years and they had continued for a year since he had stopped working in dusty conditions. He had always attributed his throat symptoms to his work alone, and I would fix his firm belief amounting to knowledge of significant injury, combined with the pre-existing knowledge of attribution of throat symptoms, at April 1989.
45. I do not consider that the claimant can be faulted for not doing more than he did to identify his injury and its cause before that date, for the purposes of section 14(3)(b).
46. It may seem hard that time should run for the purposes of the Limitation Act when a claimant has taken reasonable steps to obtain medical or other expert advice to confirm his own belief in an injury, or its attribution, and the advice obtained has proved negative until he is well outside the primary period of limitation; but the three year period will be sufficient in most cases to obtain the necessary positive advice if a claim is good, and in hard cases where a claim is in fact good, and a claimant acts reasonably, but for one reason or another the advice is negative, the remedy lies in section 33 of the Act.
47. Mr Vincent's challenge to the exercise of the court's discretion under section 33 was based on the assumption that the true date of "knowledge" for the purpose of section 14 was 1984 so that the delay for the purposes of section 33 was from 1987 to 1998, but I will assume that the basis of his challenge would be the same if, as I believe, the delay was from 1992 (three years after 1989) to 1998. There were three elements to his challenge: first, that the claimant had failed to act promptly to obtain the medical and other expert advice necessary to advance his claim; second, that the defendants had been prejudiced in their defence of the claim, by the passage of time; and, third, that the claim was weak and of little value and presented by a legally aided litigant, so the the irrecoverable cost of defending it was out of all proportion to its worth.
48. In my view, however, as I have already indicated, the claimant made reasonable efforts to seek medical and other advice from the time when he associated throat symptoms of any severity and apparent permanence with his working conditions. He went to see his GP in 1989 and attended the hospital appointments which were thereafter arranged. Despite negative medical advice he went to see experienced personal injury litigation solicitors a year later in 1990. Thereafter the failure to commence proceedings was caused by an inability to obtain the positive medical and other expert evidence which any sensible legal aid authority or solicitor or counsel would require for that purpose, compounded in 1996 and 1997 by the defendants' resistance to disclosure of the presence in their coating powder of TMA which, as paragraph 2 of the Defence now admits, was known by them to be a potential sensitiser.
49. The allegation of prejudice by delay was based on evidence from the defendants' solicitor that in 1993 the defendants had disposed of the premises where the claimant had worked and that they have since been demolished. Moreover, the solicitor has only been able to trace one further director or fellow employee, and he has no detailed knowledge of the plaintiff's work. The solicitor has not been able to trace Mr Gazely. However, I find in difficult to see how the layout of the workplace will prove significant on the issue of liability and there is no evidence of the extent of the steps taken to find witnesses. The case is likely, in my view, to revolve around expert evidence as to the condition of the claimant and the effect of inhaling dust containing TMA and chromium.
50. Nor can I accept that the claim appears weak or of little value. It is true, as Mr Vincent pointed out, that even now the claimant lacks a medical report identifying a condition probably caused by inhaling TMA or chromium, and that most of his special damages may be attributable to factors other than his throat symptoms. But the acknowledged presence of an admitted sensitiser in the claimant's working environment for a period of four years in my view provides a strong apparent case on liability, and general damages for sixteen years of discomfort so far, consistent with sensitisation, will not be insignificant if the claim succeeds, quite apart from an uncertain prognosis. The existence of legal aid can not be material, in my view.
51. In my view it is equitable to direct that what would otherwise be the harsh provisions of sections 11 and 14 of the Act, in the circumstances of this case, should not apply to the claim.
52. For all these reasons, while disagreeing with the judge's view of the date of knowledge, I too would allow the claim to proceed, and I would dismiss this appeal.
LORD JUSTICE JUDGE:
I agree, and add a judgment of my own in deference to the substantial citation of authority by counsel.
I shall not repeat the facts or the statutory provisions set out in Bell J's judgment.
"No one doubts that knowledge is an ordinary English word with a clear meaning" (per May LJ in Davis v Ministry of Defence, unreported, 26th July 1985). Yet in the context of ss11 and 14 of the Limitation Act 1980 this simple word has been the cause of much debate and some controversy.
S11(4)(b) and s14 of the 1980 Act, together with s33, represent the latest in a series of statutory provisions designed to alleviate the stark injustice of the Limitation Act 1939, described by Lord Reid in Cartledge v Jopling [1963] AC 758.
"..... a cause of action accrues as soon as a wrongful act has caused 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."
The subsequent reforms did not eradicate limitation periods in personal injury actions, but rather provided that a limitation defence would no longer succeed if the claimant, ignorant of the fact that a cause of action had accrued to him, fails to bring an action within three years of its accrual. The running of time is postponed until, but not beyond, the injured person's "date of knowledge". Thereafter he has three years in which to begin proceedings, in the vast majority of cases a generous enough period to make any necessary enquiries before deciding whether to pursue the claim. The purpose of the legislation is to avoid the injustice identified by Lord Reid, not to do away with limitation periods altogether.
Rather than provide any interpretation of the word "knowledge", s14 defines the date of knowledge for the purposes of s11 (and s12) and identifies the material matters of knowledge which arise for consideration. More particularly ss14(1)(a), 14(1)(A)(a), 14(2) and 14(3) are concerned with the date of knowledge in relation to the significance of the "injury in question", while ss14(1)(b), 14(1A)(b) and 14(3) relate to knowledge that the injury "was attributable "as a matter of fact, not law, to the act or omission of the potential defendant. The significant feature of s14(3) is that it introduces into what is normally regarded as the entirely subjective concept of an individual's personal knowledge - what he knew - the principle of constructive knowledge - whether he knew it or not, what he might reasonably have been expected to acquire or deduce from particular facts (McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073). Conclusions about an individual's state of knowledge, like any other relevant state of mind, normally depend on inferences drawn from the relevant surrounding circumstances. The combination of objective elements for consideration in relation to constructive knowledge with subjective questions about an individual's state of mind, together with the absence of any statutory guidance about the requisite degree of knowledge, has given rise to some of the difficulties which would not normally attend the elucidation of an "ordinary English word".
Mr Sniezek was found by Judge Ansell strongly to have believed from the start, that his throat problems were attributable to conditions at work. Naturally his clear evidence in cross examination was relied on by Mr Vincent, but, in the result, his answers were given a somewhat limited interpretation by the judge.
He said
"he may have had a belief from the start, but that was not knowledge for the purposes of the Act. Indeed, there is clear evidence in this case that, notwithstanding what one might even term as strong belief on his part, he recognised the need to get both medical and legal advice, which he did on a number of occasions, consulting two sets of solicitors and I think going to specialists on four or five occasions. "
This conclusion depended in part on recognition that the claimant was not absolutely precise in his use of English, which was not his native tongue, and the judge's insight into the fact that after many years in which his belief had been dismissed by a series of professional experts, virtually anyone who has ultimately been vindicated, or believes himself to have been vindicated, would be inclined to assert that he had been right all along, and therefore to have "known" what the medical experts had taken years to confirm.
However, beyond recording it, the judge did not deal specifically with the fact that Mr Sneizek had sought assistance from Union solicitors, Robin Thomson and Partners, who had referred him to and sought the advice of Dr Rudd, a well known physician. Dr Rudd reported that there was "no evidence to support the view that any of his symptoms are attributable to his work". Naturally enough his solicitors did not pursue any claim or make any further investigations. It may seem stark in such circumstances to conclude that Mr Sniezek could nevertheless be fixed with the requisite knowledge no later than the date when he consulted the solicitors, but Mr Vincent submitted that this was the effect of the authorities.
His contention was wholly inconsistent with the decision In Davis v Ministry of Defence, 26th July 1985, unreported, when, following the grant of legal aid, solicitors acting for the plaintiff issued a writ against the defendant in October 1973. Eventually it lapsed. In November 1981 a new writ, endorsed in identical terms to the original writ, was issued. This claim was struck out. Basing its decision on the relevant provisions of the 1980 Act, the Court of Appeal allowed the appeal and permitted the action to proceed. Plainly the fact that the plaintiff had already consulted solicitors was not regarded as fatal to the second claim. Arguably the limitation defence might not succeed.
An early indication of judicial concern about this decision was the comment by Lord Donaldson MR in Halford v Brooks [1991] 1 WLR 428 that the facts were "highly unusual", and his subsequent observations:
"The word (knowledge) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context "knowledge" clearly does not mean "know for certain and beyond possibility of contradiction". It does, however, mean "know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence". Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice. It is probably only in an exceptional case such as Davis v Ministry of Defence that it will not, because there is some other countervailing factor." (p443)
Both when identifying the necessary degree of knowledge, that is, "sufficient confidence to justify embarking on the preliminaries to the issue of a writ", and when illustrating the circumstances in which the inference of such knowledge would be drawn, that is, "submitting a claim to the proposed defendant", Lord Donaldson began the dilution of authority from Davis. Significantly, he did not suggest that seeking advice from a solicitor was conclusive, nor that, on its own, it should be treated as representing a sufficient preliminary to the issue of a writ so as to lead to the inescapable inference of the requisite degree of knowledge. In effect, the argument advanced by Mr Vincent depends on treating Lord Donaldson's observations as encapsulating a principle of law definitive both of the relevant degree of knowledge sufficient for time to run (which, as his words, "It does, however, mean ......" demonstrate, they were) and of circumstances in which the inference of such knowledge would inevitably be drawn (which, as his introductory words, "such as" show, they were not). In my judgment the distinction is crucial, and has not been undermined by subsequent decisions.
In Nash v Eli Lilly & Co [1993] 1 WLR 782, Davis was distinguished on the basis that it was concerned with a strike out. It was not expressly over-ruled, but the court found itself unable to derive a "great deal of assistance from it".
"The decision does, however, appear to regard as arguable the contention that, if a claimant is shown to have had knowledge, as we understand the meaning of that word in this context, that his injury is attributable to act or omission of the defendant, the subsequent obtaining of expert advice for the purpose of legal proceedings which said that the injury is not so attributable, could retrospectively cause him never to have had such knowledge. We do not accept that that contention is arguable. It seems to us to be in conflict with the words of the statute .... We add that we have difficulty in perceiving how in any case where a claimant has sought advice and taken proceedings, it can rightly be held that the claimant had not then had relevant knowledge."
(per Purchas LJ at p 795/796)
The last conclusion is hardly surprising. If a plaintiff has taken proceedings, save in the most exceptional factual circumstances, it is difficult to see how he should in a subsequent action benefit from the relaxation of the relevant limitation provisions when he has allowed the first proceedings to lapse. Compelling evidence would be needed to avoid the conclusion that such a plaintiff must indeed have had the requisite degree of knowledge, that is, "sufficient confidence to justify embarking on the preliminaries to the issue of a writ". Accordingly, on the point currently under consideration, any remaining substance of authority was drained from Davis.
Having analysed the principles, the court in Nash explained the conclusions which would guide it. These included
"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 results of his enquiries was known to him ...... If negative expert advice is obtained, that fact must be considered in combination with all other relevant facts in deciding when, if ever, the plaintiff had knowledge..... If the plaintiff held a firm belief which was of sufficient certainty to justify the taking of the preliminary steps for proceedings by obtaining advice about making a claim for compensation, then such belief is knowledge and the limitation period would begin to run."
Mr Vincent argued that the present case fell precisely within the terms of the last sentence, in which Purchas LJ was plainly echoing Lord Donaldson's observation in Halford. During the course of the argument I had difficulty in reconciling the first and last parts of this passage. In context I take the reference to "negative expert advice" to include a reference to legal as well as medical advice. So if negative legal or medical advice is received by a plaintiff who firmly believes "that his injury was attributable to the act or omission of the defendant", this belief is not "knowledge" for the purposes of ss11 and 14 if his state of mind is such that he thinks it necessary to obtain "reassurance" or "confirmation", yet if he seeks legal advice when his belief is already sufficiently certain to "justify the taking of the preliminary steps for proceedings by obtaining advice", inevitably in this context, legal advice, it is. The distinction between "advice" about making a claim for compensation, and "reassurance or confirmation" from a legal adviser is difficult to draw at the best of times, and bearing in mind that the investigation would ultimately involve examining questions about legal advice sought by the claimant some years earlier, difficult to ascertain with any comforting sense of precision. However the difficulties disappear if, as with Lord Donaldson's observations, this guidance is recognised for what it is, and was asserted to be, guidance about the issue of fact which arises when the plaintiff has sought legal advice -did he, or did he not, have the required degree of knowledge?
As the first and second sentences demonstrate, this decision is not authority for the proposition that time automatically starts to run against a claimant who has taken legal advice. Indeed nothing in the Act suggests that any special consequences must or should be deemed to arise from his doing so, a feature lent particular emphasis by the enactment of express provisions relating to constructive knowledge.
Faced with guidance which appeared to produce a definite set of legal principles about the inferences which should follow in circumstances when the claimant had taken legal advice about a possible claim, subsequent decisions loyally sought to apply the guidance as increasingly refined arguments were deployed to demonstrate that an individual case fell on one side or the other of the relevant line.
In Spargo v North Essex District Health Authority [1997] PIQR 235 the crucial fact was that "the judge found that the plaintiff was clear in her mind that the connection was there between the misdiagnosis and what she had suffered when she came to her solicitor for advice on whether and if so how she could claim compensation for what she had suffered". That finding of fact was conclusive. The plaintiff was seeking legal advice about the method, the means, the steps required to start her claim: so she knew all that was necessary for her to know for time to start running.
In his judgment Brooke LJ derived two relevant principles from the authorities.
"(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or 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 what it was."
As Brooke LJ made clear, he was not seeking to develop this area of the law, but rather, after an analysis of the authorities, attempting to summarise it. Applying his observations to the present case, Mr Head graphically suggested that the result of the visit by the claimant to his solicitors was, contrary to his own belief, that there was no tree to bark up. That led to the unjust conclusion that time was running notwithstanding the wholly adverse, but in the light of the medical response, sensible advice of his solicitors.
Attractively put as it was, it does not seem to me that Mr Head was right. In each case the single question remains the individual's state of knowledge of the relevant matters, rather than his adviser's opinion about the prospects of success in legal proceedings. Once time starts to run, it is not postponed even if the plaintiff sensibly thinks, on the basis of legal and medical advice, that he should not proceed to litigation. When all is said and done that is not an end of the matter: under s33 the court is enabled to consider whether the limitation period should be disapplied notwithstanding the lapse of time. This conclusion follows from the wording of the statute, and was demonstrated in the passage in the judgment of Purchas LJ in Nash at p793,
"Mr Playford submitted that once it had been established that the plaintiff had knowledge, actual or constructive, then the period of limitations started to run and that nothing that occurred thereafter would interrupt that process. S14 of the Act, he submitted, contained no provision for suspension or termination of this process. S33, he submitted, had been included to deal with exceptional or hard cases. Mr Brennan did not argue to the contrary, nor could he do so in view of the presence of the word "first" in s14."
In O'Driscoll v Dudley Health Authority [1998] LLRM 210 the Court of Appeal reluctantly felt compelled to allow the defendant's appeal against the decision that the plaintiff's claim was not time-barred. The plaintiff's problem was simply expressed. From the age of 15 years she had sufficient knowledge for the purposes of the Act. This meant that when she attained her majority, time began to run against her, unfortunately that occurred on her eighteenth birthday, and was not, as she and her family believed, postponed until she was 21. On her 21st birthday a letter before action was written in which the "father merely recorded in writing what his daughter already knew. She had sufficient information to justify embarking with confidence on the preliminaries to the issue of the writ by intimating a claim to the proposed defendant before taking legal or other advice". (per Otton LJ at p216) Again, although desperately sad, the result appears to have been inevitable.
Dealing with Brooke LJ's analysis in Spargo, Simon Brown LJ pointed out that the fourth principle should not be treated as contradicting the third. He said that it
"must be read as postulating a situation antithetical to that covered by the third principle; ie the fourth principle postulates a state of mind short of a firm belief which takes a potential claimant to a solicitor. So as to clarify further the contrast between principles three and four, I would just add that the reference in principle four to the `need to check with an expert' is a reference to the need for an expert opinion before even the claimant can be said to know that the attributability of her condition to a particular `act or omission' is a real possibility..... That is not the same investigation as is referred to in the first limb of principle three; this latter is an investigation into whether the plaintiff `has a case against the defendant' ..... an investigation which must be carried out whilst the limitation clock is ticking."
The application of s33 was not, and for the reasons given in the judgment could not be, considered by the court: so we cannot know what its response would have been.
The final authority for consideration is Ali v Courtaulds Textiles Limited [1999] Lloyds MR 301. The plaintiff suffered from deafness. He did not and could not know, one way or another, whether his deafness was caused by the natural ageing process or exposure to industrial noise. That was a medical question. So he obtained medical advice, not by approaching a doctor directly, but by seeking advice from a solicitor who sent him to a doctor for examination and report about the cause of his deafness. The judge found "that the mere fact of seeking that advice (which necessarily had to be medical) fixed him with knowledge". (per Henry LJ at p304)
On analysis of the statutory language, that conclusion was rejected. The judge had failed to give proper weight to the provisions in s14(3), and wrongly inferred knowledge from the fact that the plaintiff had sought medical advice about the cause of his deafness through the medium of a solicitor.
On the facts ascertainable from the report, I agree with Henry LJ that the necessary degree of knowledge was not established. If Mr Ali did not know whether his deafness resulted from exposure to noise at work, or the natural ageing process, I find it difficult to see how he could be fixed with the necessary degree of knowledge that he had suffered an injury which was attributable to the act or omission of the defendants. He needed to "check" with, or obtain "reassurance or confirmation" from a medical expert. If Mr Ali had gone directly to a consultant, rather than through a solicitor acting as an intermediary, I do not believe that the requisite degree of knowledge would have been established. Equally, if the medical advice he had received when he did so had attributed his condition to the ageing process he would not, in my judgment, have been fixed with knowledge merely because he had serious trouble with his hearing and sought advice about its cause.
Having considered the authorities cited to us, I have reminded myself that in Dobbie v Medway Health Authority [1994] 1 WLR 1235 at 1240, when Sir Thomas Bingham MR was reflecting on the statutory provisions currently under consideration, he said:
"This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it. In the case of an insidious disease or delayed result of a surgical mishap, this knowledge may come well after the suffering of the disease or the performance of the surgery. But more usually the claimant knows that he has suffered personal injury as soon or almost as soon as he does so."
In short, the question is one of fact in each case. I doubt whether any considerable legal refinement is normally necessary or appropriate. What I believe has made for unnecessary complication is that the fact finding process has too often been treated as if it were a question of law. If a proposed claimant seeks legal advice, this may well lead to the inference that he was possessed of the necessary degree of knowledge when he did so. As to significant injury, the very fact that legal advice was sought would normally suggest that he thought that the injury was "significant" (otherwise why seek legal advice at all?). However the inference that the claimant sufficiently knew that the injury was attributable to the acts or omissions of an identified defendant does not inexorably follow from the fact that he sought legal advice.
If I may say so, where the point is contentious and inadequately covered by appropriate affidavit evidence which means that, as in this case, it is thought appropriate that the claimant should give oral evidence, or where the affidavit evidence is sufficient, five or ten minutes of argument focused upon the facts will enable the judge to make up his mind much more quickly than a prolonged trawl through the authorities. This will also avoid the danger that a question of fact might wrongly be treated as a issue of law, and, what is more, would probably produce a truer result, more certainly reflecting the realities of the individual case, and the date when time indeed started to run.
On the facts here, I agree with the conclusion reached by Bell J that time started to run rather earlier than the judge found. I also agree that for the reasons he has given, it would be equitable to disapply the limitation provisions. In the particular circumstances of this case, the critical factor which has led me to this conclusion is the injustice which would follow if, given the history, the claimant, who had done his best to obtain appropriate medical and legal advice, were now to be deprived of his opportunity to bring proceedings. I can find no significant countervailing prejudice to the defendants.
I therefore agree that this appeal should be dismissed.
LORD JUSTICE SIMON BROWN:
1. I agree with my Lords as to how s.14 and s.33 should properly be applied on the particular facts of this case and am tempted to say no more. Since, however, I made certain remarks in O'Driscoll v Dudley Health Authority [1998] LLRM 210 in the hope of illuminating the principles laid down in Spargo v North Essex District Health Authority [1997] PIQR P235 which, as I now think, might more usefully have been directed towards the series of conclusions earlier reached in the leading case of Nash v Eli Lilly & Co. [1993] 1 WLR 782, and since I am not entirely in agreement with Judge LJ as to whether the later case of Ali v Courtaulds Textiles Limited [1999] LRM 301 was decided consistently with those principles, I have felt bound to add a short judgment of my own.
2. Generally, when someone is injured, he knows then and there whether his injury is significant; he knows broadly how he has come to be injured; and he knows who has injured him. Such a person, however strong or weak he may suppose his case to be, is given three years to sue, an ample time in which to seek advice, submit his claim, gather his evidence, and take such other steps as are ordinarily taken before the issue of proceedings.
3. Sometimes, however, when an injury occurs, the person injured does not know at the time that it is significant (it may be latent or insidious or at the outset appear trifling); or he does not know that it is capable of being attributed to whatever act or omission is ultimately alleged blameworthy (he may have become deaf and have no notion that this may be attributable to his conditions of work); or he does not know who is responsible for the relevant act or omission. In such a case the commencement of the three year period is postponed until all those facts are known, either actually known or (see s.14(3) of the Limitation Act 1980) constructively known.
4. All, therefore, that the court has to do in a case like the present which concerns the date of actual knowledge is to investigate when first the claimant knew the relevant facts - the dispute generally being about knowledge of the fact of attributability. Why, one is tempted to ask, does that so often prove so difficult and why is the question so encrusted with (not always easily reconcilable) authority?
5. The answer appears to be because of the difficulty in this context of deciding just what is meant by knowledge and, more particularly, knowledge of attributability. Each of my Lords has already cited at some length from the court's judgment in Nash v Eli Lilly and I need not repeat those passages. Clearly that judgment (reserved after a lengthy hearing) was composed with some care and yet, in common with Bell J, I find some difficulty with it and in particular in reconciling the first and last sentences of paragraph 5 of the court's conclusions at page 796. Before turning to that, however, I would like to contrast the first sentence of paragraph 5 (included in paragraph 32 of Bell J's judgment) with an earlier passage in the court's judgment at page 795 (included in paragraph 31 of Bell J's judgment). It seems to me likely that the court was seeking to reflect this earlier passage when it came to the first sentence of paragraph 5 of the subsequent summary. And yet, when one reaches paragraph 5, what previously had been merely a "belief" has become "a firm belief", and the earlier "expert confirmation" has become "reassurance or confirmation from experts, medical or legal, or others".
6. Now it seems to me one thing to say that a mere believer in attributability who "realises that his belief requires expert confirmation" does not have knowledge of that attributability; arguably another to say that a firm believer who, for example, nevertheless wants legal advice (say to reassure him that he has reasonable prospects of success) is not to be regarded as having the requisite knowledge. Why should not time have started running in the case of the latter? Why should he be entitled to his solicitor's reassurance before the three year limitation period even begins? I do not think that he is and nor do I think that the court in Nash v Eli Lilly were intending to suggest otherwise: and that surely is evident from the final sentence of paragraph 5.
7. In short, it seems to me that the real contrast being struck in Nash v Eli Lilly is between on the one hand the mere believer whose situation is described in the first passage in the judgment, and on the other hand the firm believer sufficiently certain of his case to have clearly in mind (although always, of course, subject to the taking of appropriate advice and the preparation of evidence) the making of a compensation claim. Naturally I recognise that the decision as to which of those two basic categories fits any particular claimant will not always be an easy one. Obtaining expert confirmation of one's belief is not perhaps obviously different from the taking of preliminary steps for the institution of proceedings. But we have in addition to the two basic categories described in Nash v Eli Lilly the court's guidance there that "whether a claimant has knowledge depends both upon the information he has received and upon what he makes of it" - although it should be borne in mind that if he makes manifestly too little of it and fails on that account to take advice he may well be found fixed with constructive knowledge.
8. Having regard to these considerations and having regard too to the underlying purpose of this legislation - to postpone the three year period allowed for the investigation and institution of a specified claim until the claimant knows enough to make it reasonable to set time running - I find it difficult indeed to imagine a case where, having consulted a solicitor with a view to making a claim for compensation, a claimant could still then be held lacking in the requisite knowledge.
9. In short, I adhere to what I said in O'Driscoll and in the result confess to some difficulty both with the reasoning and, I have to say, with the result in the subsequent case of Ali. True it is that when Mr Ali went to his solicitor he knew only that his deafness might have been caused by his conditions of work in the cotton mill rather than (as he had earlier assumed) by a natural ageing process. But that seems to me sufficient knowledge of attributability given, as stated in the second of the Spargo principles, that in this context a real possibility of establishing causation constitutes attributability. As Brooke LJ explained, the exploration of whether the injury (in Mr Ali's case his deafness) "was indeed probably caused" by the relevant act or omission (in Mr Ali's case his conditions of work) was something appropriately to be done within, not before, the three year period of limitation. Mr Ali, therefore, seems to me to have come strictly within the second category outlined in Nash v Eli Lilly; he was someone "obtaining advice about making a claim for compensation"; he had, indeed, already obtained a legal aid certificate for the purpose, albeit one initially limited to obtaining the necessary ENT report.
10. My difficulty with the reasoning in Ali is twofold. In the first place the judgment appears to proceed on the footing that Mr Ali had to know that his deafness actually "was" noise-induced, rather merely than that this was a real possibility, before he could be said to have had actual knowledge of the fact of attributability. Secondly, I am troubled by the reliance placed in the judgment on the proviso to s.14(3). To my mind that subsection provides no assistance in determining whether a claimant can be said to have actual knowledge of the material facts. This question is to be determined solely by reference to s.14(1) and (2). The proviso to subsection (3) precludes only a finding of knowledge "under this subsection", i.e. a finding of constructive knowledge. Mr Ali, as it seems to me, should have been found to have actual rather than (as apparently the assistant recorder found) constructive knowledge when he consulted his solicitor.
11. For obvious reasons, I make these points here with some diffidence given that they do not affect the outcome of this appeal and that there are already perhaps too many judgments seeking to analyse the effect of these provisions. It really does seem to me important, however, that s.14 should not be applied to delay the start of the limitation period for longer than a want of knowledge makes fair and necessary. Hard cases like the present can always be catered to under s.33.
Order: Appeal dismissed with Costs. Leave to Appeal Refused.
(Order does not form part of approved judgment.)