England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
(Mr Recorder Sycamore)

		Royal Courts of Justice Strand London WC2 Monday 29 October 2001

Monday 29 October 2001

1. LADY JUSTICE HALE: This is a claimant's appeal against the order of Mr Recorder Sycamore, as he then was, made in the Oldham County Court sitting in Manchester on 30 April 2001. He dismissed the claim against two defendants after a trial of a preliminary issue on limitation. There is no appeal in relation to one of those defendants. There is an appeal in relation to the other defendant with the permission of Kay LJ.
2. The appellant suffers from vibration white finger. Since leaving school in 1968 he has worked for various employers in the ship-building industry. He worked for the respondent first defendant from 8-23 June 1989, some twelve working days; from 8 December 1989 - 4 January 1990, presumably some 14 working days; and then from 2 August 1993 - 12 November 1999, over six years.
3. The claim was issued on 2 December 1999. The relevant date for the purpose of the primary limitation period is therefore 2 December 1996. The recorder dismissed the claim in total, and it is common ground that he should not have dismissed the claim in respect of any exacerbation of the claimant's condition taking place within the limitation period. He was not asked so to do and it is agreed that the appeal must be allowed to that extent.
4. For the period before then, the recorder found that the appellant's date of knowledge for the purpose of section 14(1) and (2) of the Limitation Act 1980 was, at the latest, September 1992. He declined to exercise his discretion under section 33 of the 1980 Act to disapply that limitation period. The appellant's argument on this appeal is that, whatever may have been his date of knowledge in relation to other employers, and in particular the other defendant in the case, his date of knowledge in relation to this employer was much later, early to mid-1995 at the earliest. The period of delay was therefore some 15-18 months at most. This, coupled with the continuing claim which must proceed for matters within the limitation period, puts an entirely different complexion upon the exercise of the discretion under section 33.
5. The background facts are these. The judge found the appellant to be an honest and straightforward witness. He was generally aware of a problem with his fingers in the mid-1980s but did nothing about it then. In September 1992, however, he submitted a claim to the Department of Social Security for Industrial Disablement Benefit for a prescribed industrial disease, namely white finger. In that claim form he is asked where he was employed and he enclosed a long list of his various employers, with dates, including the two short periods in which he had been previously employed at that date by the respondent. Furthermore, in November 1992 he instructed solicitors through his trade union. At that stage the trade union and the Iron Trades Insurance Association operated a Vibration White Finger Scheme. Under this the union did not fund litigation but a type of alternative dispute resolution. The scheme applied where a person had been employed for an aggregate of, at first two years, later reduced to one. It did not matter how many employers had been involved: as long as their insurers were participants in the scheme, the insurers would pay compensation based on a simple scale on confirmation of the condition by a medical report.
6. On 23 November 1992 the solicitors wrote to a large number of employers on the claimant's behalf, including to the respondent, stating their intention to claim compensation on his behalf. The respondent's insurers, Eagle Star, wrote back asking whether this was a scheme case. The solicitors eventually replied saying that it was a scheme case. In June 1993 Eagle Star wrote back saying that, in view of the short period of the claimant's employment with their insured, it was not reasonable to expect them to contribute. The claimant's solicitors accepted this response. There matters more or less rested against them until 1999, very shortly after the claimant had left the respondent's employment, when this claim was notified and the proceedings begun, quite outside the vibration white finger scheme.
7. Those solicitors also sent the appellant to see a consultant, Mr McLoughlin, in December 1992 in connection with those scheme claims. He produced a report dated 14 December in which he confirmed the diagnosis and placed the severity of the injury at stage II in the Taylor Pelmear scale. As far as prognosis was concerned he said this:

"If exposure to this type of equipment continues then the balance of medical probability would suggest that his digital neurovascular injury will progress in the affected digits beyond the scale II level and in addition to affect those digits presently unaffected by the condition."

This report was sent to the appellant in May 1993 and read to him by his wife. At that stage only two of his fingers were affected, the middle and index fingers of his left hand. In his witness statement he says, and the judge seems to have accepted, that he thought that it was only those that would get worse. He later realised the report meant that others could be affected too. By the time of his witness statement in June 2000 all his fingers and thumbs were affected. That witness statement says, at paragraph 56, "As far as I can remember they have been like this [by which he meant aching and painful] for the last 4 or 5 years." He expanded upon this in his witness statement of 11 January 2001, saying that a year or two before that his hands were always cold when he went to bed and when he woke up in the morning, and latterly he had started dropping things. In his oral evidence he put the deterioration noted as about 1995/96. On the other hand, when he was sent to see Mr McLoughlin in April 1998 he told Mr McLoughlin that since the end of 1993 or early 1994 similar symptoms had spread to involve all four fingers of both hands, including the thumbs. Mr McLoughlin diagnosed a deterioration in his condition, now at stage III on the Taylor Pelmear scale. In a further letter he attributed 72 per cent of the current disability to the claimant's present employer, the respondent, and 28 per cent to his earlier employments.

8. The judge found that the appellant knew that the injury was significant at the latest by September 1992, when he submitted the Industrial Disablement Benefit claim. He concluded that that date of knowledge was applicable against all the employers named then, including this respondent:

"It is necessary to look at the injuries as a whole and to consider whether the acts or omissions of a particular Defendant have contributed in whole or in part to the injury which is now regarded as significant. To do otherwise would create a situation in which a claimant would argue for different dates of knowledge for different employers in respect of the same injury."

The main issue on this appeal is whether that is an accurate statement of the law.

9. Section 11(1) of the Limitation Act 1980 reads as follows:

"This section applies to any action for damages for negligence, nuisance or breach of duty. . . where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person."

Section 14(1) states:

". . . in sections 11 and 12 of this Act reference 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) . . . "

Section 14(2) reads:

"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."

10. Mr Main on behalf of the appellant argues that for these purposes we have to consider each potential defendant separately. All three elements in knowledge have to come together. One has to know the identity of the individual defendant, one has to know that the injury is attributable to the act or omission of that defendant, and one has to know that the injury so attributable is significant. In this case it cannot be supposed that in 1992 this appellant knew all that in respect of this defendant. He knew that he had a significant injury then. He knew that it was attributable to working for all these employers. But he could not know that a significant, or indeed any, injury was attributable to working for this particular employer by then. The notification by the solicitors was purely for scheme purposes and the repudiation at that stage was properly accepted. More importantly, this was a continuing cause of action. Once the claimant was again employed by this defendant and his condition was exacerbated, that defendant become liable for the continuing exacerbation. The claim is in respect of the exacerbation. That therefore is the injury in question for the purposes of section 14(1)(a). The claimant did not therefore have knowledge in respect of this employer that his injury was significant until he experienced a significant deterioration.
11. The respondent argues that one cannot have more than one date of knowledge in relation to a single condition suffered in the course of different periods of employment, and also that as the claimant knew he had an injury, he knew the cause and he knew the risk of deterioration, he must have had knowledge very soon after he returned to work for the respondent in August 1993.
12. In my judgment, the judge did take the wrong approach to this question. Section 14(1) clearly refers back to section 11, which refers to an action for "damages in respect of personal injuries". When, therefore, section 14(1)(a) talks about "the injury in question", it must mean the injury in respect of which this action is brought. This appellant is not bringing an action in respect of any injury that he may have suffered in the two very short periods of employment with this respondent before 1993. The action is in respect of exacerbation since then. The respondent accepts that there was a continuing cause of action arising day by day, as and when the appellant continued to be affected by any negligence or breach of duty which may eventually be proved against this respondent.
13. I conclude that the judge must have approached this matter wrongly. He should have asked himself when, within the meaning of the Act, did this claimant know that the injury in question, that is the exacerbation of his condition in this employment, was significant? The judge did not ask himself that question. Furthermore, he made no findings of fact in relation to it. I have already pointed out that the claimant's own evidence on this was vague and not entirely consistent, and what he had told Mr McLoughlin in 1998 was not exactly the same either. This is a matter on which findings of fact have to be made and this court could not substitute its own decision for that of the judge below.
14. But the judge below was very much influenced in the exercise of his discretion by his finding that the relevant date was September 1992. He felt therefore able to characterise the claim against this defendant as "a thoroughly stale claim" without considering the impact of the claimant's later continuous employment with that defendant up until a point very shortly before the claim was notified. Furthermore, the judge left completely out of account the fact that he was only considering the first three years of that employment because the second three years were, on any view, within the limitation period.
15. There are, of course, many elements in this case which are relevant to the exercise of discretion which ultimately may militate against the claimant. But what is plain is that, because of the view taken on the date of knowledge, this exercise was not properly undertaken by the trial judge. As Lord Justice Keene pointed out in the course of argument, one can test the matter in this way. If the claimant had not made any claim at all against this defendant in respect of the damage to his left hand, but had claimed only in respect of the damage to his right hand, the respondent's argument could not possibly have been run.
16. In my judgment, therefore, this appeal must be allowed. The matter of the exercise of discretion under section 33 of the 1980 Act should be remitted to the trial judge. It should be dealt with at the trial rather than as a separate preliminary issue. The matters of fact in relation to it are ultimately and intimately bound up with matters which are relevant to the claim as a whole. A further consideration is that this claim is to go ahead in any event in respect of the last three years. Little will therefore be gained by anybody by continuing to separate out the issue of limitation.
17. LORD JUSTICE KEENE: I agree. It seems to be accepted that the six years of employment by the respondent, beginning in August 1993, is likely to have caused further injury to the appellant beyond that which he had suffered by September 1992. As at the later date, to take an easy and perhaps vivid illustration, he had not suffered vibration white finger in his right hand or in any finger thereof. As a matter of principle, if a fresh period of exposure to industrial conditions causing vibration white finger takes place and a fresh injury is then suffered in consequence, there is a new cause of action. In the present case that must mean that a further cause of action arose after September 1992; and, indeed, so far as this respondent is concerned, after August 1993. In those circumstances September 1992 must be wrong as the date of knowledge on the part of the appellant under section 14 of the Act.
18. I agree that that means that the learned recorder exercised his discretion on an incorrect basis. Exactly when the appellant had the requisite knowledge of the fresh cause of action against the respondent is not easy to establish on the basis of the evidence before this court, but that in itself is a further reason why it would not be right, in my judgment, for this court simply to substitute its discretion for that of the court below. I agree that the order must be quashed and that the limitation issue should be dealt with at trial and not as a preliminary issue. I consequently agree with the order which my Lady has proposed.
ORDER: Appeal allowed. The order of the court below to be set aside. The issue of limitation to be remitted to be dealt with by the trial judge at the trial of the action. The trial judge is to deal with the costs of the previous hearing below. In this appeal the respondent will pay the appellant's costs of the appeal in the sum of £7,700. (Order not part of approved judgment)