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 LEICESTER COUNTY COURT
(Mrs Recorder Harman)

		Royal Courts of Justice Strand London WC2 Friday 9th February, 2001

1. LORD JUSTICE ALDOUS: I will ask Lord Justice Dyson to give the first judgment.
2. LORD JUSTICE DYSON: The claimant in this case, who is the respondent to the appeal, served as a soldier in the Royal Green Jackets from 14th September 1972 until 25th March 1989. He started proceedings on 22nd April 1999 against the defendant, claiming damages first for loss of hearing allegedly caused by excessive exposure to the noise of firearms when in service, and secondly for failure by the defendant to inform him prior to his discharge from the army that he was suffering from hearing loss.
3. On 3rd March 2000 the claim for damages for loss of hearing, a claim in respect of personal injury, was struck out on the ground that the defendant's limitation defence was bound to succeed. The appeals are concerned with the failure to warn the claimant (which I shall refer to as "the second claim").
4. On 14th August 2000 Mrs Recorder Harman dealt with three matters. The first was an application by the defendant to strike out the second claim or enter summary judgment against the claimant on the grounds that it had no reasonable prospects of success at trial. The Recorder dismissed this application.
5. She then heard an application by the defendant that section 14A of the Limitation Act 1980 did not apply to the second claim. She held that it did.
6. Finally, she tried as a preliminary issue the question whether the second claim was barred by the Limitation Act. She held that it was not. The defendant now appeals against all three decisions.
7. The facts can be stated shortly at this stage. The claimant was born in 1956. He enlisted with the Royal Green Jackets in September 1972. He left the army in 1977 but reenlisted in 1980. The defendant conducted hearing tests on him in 1980, and again in May 1987 and November 1988. The later tests showed that he had a high frequency sensorineural hearing loss on his left side. This was consistent with his own perception of his hearing, a topic to which I shall have to return.
8. The claimant did not ask for, nor was he given, the results of these hearing tests. After his discharge in March 1989 he sought other work. He was a self-employed plumber for two years. He had other work on a self-employed basis until 1993. A key date is 31st May 1996 when, having applied for employment with Toyota, he was given an audiological test. Following the Toyota test he was advised that his hearing was unsatisfactory and that his loss of hearing was likely to have been caused by exposure to the sound of gunfire.
9. On 1st October 1997 the claimant was examined by Mr Jones, a Consultant Otolaryngologist. The opinion of Mr Jones was that the claimant had a marked left-sided sensorineural hearing loss which was due to exposure to firearms. He also had mild tinnitus in the left ear, which was also due to noise exposure in the armed forces. The medical records relating to the hearing tests that had been conducted by the defendants were released to him in 1999. As I have said, proceedings were started on 22nd April 1999.
10. So far as the first application is concerned, the claimant puts his case in the following way. He says that in breach of its duty owed to him as his employer, the defendant failed to inform him whilst he was so employed that he was suffering from hearing loss, and the extent of that loss. He further says that, as a result of that breach of duty, he was unable to make a fully informed decision as to his future, and in particular as to whether he should remain in service in the army. If he had been told of the existence and extent of his hearing loss, he would not have sought discharge from the army on 25th March 1989, but would have remained in service until the end of his open engagement, which would have been in 1998.
11. On behalf of the defendant it was submitted that the second claim should be struck out on the grounds that it was bound to fail. It was contended that the defendant was not under a duty to inform the claimant of his loss of hearing. But it was also argued that there was no causal link between the alleged breach of duty and the alleged loss.
12. The Recorder refused to strike out the claim. She held, but unfortunately gave no reasons for so holding, that the claimant had raised arguable points on both the duty of care issue and the causation issue. There is no appeal before this court against the decision of the Recorder in relation to the duty of care issue. But there is an appeal on the other aspect of the matter.
13. The point is a very short one. It is submitted by Miss Bradley, on behalf of the defendant, that the claimant's case is that he would not have left his employment with the defendant if he had been informed of the result of the tests. But she submits that those tests would have disclosed to him no more about the extent of his hearing loss than he already knew and yet he left the army. In those circumstances, it is difficult to see how the claimant had any reasonable prospects of showing the necessary causal link between the failure to inform him of the results of the tests and the damage claimed; namely his leaving the service with, he says, reduced prospects of employment.
14. It is central to the claimant's case that the defendant failed to reveal the results of tests which would have indicated to him the extent of his hearing loss. The complaint is not that there was a failure to inform him of the cause of that hearing loss; or of any possible treatment that would be required to cure it; merely as to the fact and extent of the hearing loss.
15. In my judgment, the claimant had no reasonable prospects of establishing that causal link and I would allow the appeal against the decision of the Recorder on that basis. However, I go on to consider the limitation issues.
16. The primary limitation period for the second claim, not being a personal injury claim, was six years - see sections 2 and 5 of the 1980 Act. It is common ground that the cause of action accrued, whether in contract or in tort, no later than the date when the claimant was discharged. Accordingly, the claim was statute-barred unless the claimant could successfully invoke section 14A of the 1980 Act, which, so far as material provides:

"(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4) That period is either-

(a) six years from the date on which the cause of action accrued; or

(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.

(6) In subsection (5) above `the knowledge required for bringing an action for damages in respect of the relevant damage' means knowledge both-

(a) of the material facts about the damage in respect of which damages are claimed; and

(b) of the other facts relevant to the current action mentioned in subsection (8) below.

(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider 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.

(8) The other facts referred to in subsection (6)(b) above are-

(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; ..."

17. It is unnecessary to read the rest of subsection (8):

"(10) For the purpose of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire-

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

18. The issue that was raised therefore was whether the claimant could take advantage of the three-year period provided for under section 14A(4)(b). He could only do this by showing that he first acquired the knowledge required for bringing the claim after 22nd April 1996. In the absence of agreed facts or admissions, that could only be done by adducing evidence before the Recorder. It seems unusually that it was agreed in this case to deal with the section 14A point in two stages. The first was to decide whether the section applied at all. This was done without evidence, although during the course of argument reference was made to the claimant's witness statement and to some of the documents. The second was to go on to hear evidence and to decide whether the claimant could rely on section 14A or whether his claim was statute-barred.
19. In my judgment, there should not have been two stages. Either the claimant could show that his claim was not statute-barred by reason of section 14A or he could not. Certainly, in a case such as this it seems to me that in the absence of admissions or agreed facts, that could only properly be done by hearing evidence.
20. In deciding that section 14A applied, the Recorder accepted the arguments advanced on behalf of the claimant, which she summarised in her judgment as follows:

"But the claimant says that the important issue is the knowledge on the part of the claimant of the failure of the army to inform regarding the hearing loss and this was actually only established in 1998, 1999 when, in the context of the personal injury claim which has now been abandoned, the medical records were disclosed.

In 1997 the claimant was in possession of expert evidence which confirmed the link between hearing loss and the firearms use but still at that time there was no knowledge of the damage as no claim would necessarily lie against the army for hearing loss alone.

The essence of the claim, says the claimant, is the failure of the army to notify of the hearing defect and therefore the fact that employment options were thereby limited. The claimant says that this is not knowledge of negligence which the defendant rightly says did not enable a claimant to take advantage of section 14A but knowledge of the fact that the army failed to notify and thereby limited employment options. The claimant says that this is clearly a latent damage case and I accept his argument and accept that section 14A applies."

21. At the next stage the claimant did give evidence. A central issue was whether the claimant was aware before he was discharged from the service that he was suffering a loss of hearing. It is necessary to refer to some of the evidence that he gave.
22. He was asked in cross-examination by Miss Bradley about the events of 1980, and he referred to the tinnitus that he was suffering from at that stage, which he described as "ringing in his ears", and said that he presumed that that came from shooting. He was then asked many questions about his state of knowledge about his hearing in 1987 and 1988. I refer to the evidence that he gave, starting at page 38B:

"Q.So can you tell me why if medical examinations in 1987 and 1998 showed that your hearing was down significantly on the left-hand side you needed a doctor to tell you that?

A. I had also had a problem with wax. I had had my ears syringed during my service.

Q. That would be an intermittent problem. As soon as the wax has been removed, you can hear again.

A. You can hear, yes, better than before.

Q. And your hearing since 1987 has never improved, has it?

A. No.

Q. So it is a constant matter that on the left-hand side you cannot hear as well as you can on the right?

A. Correct.

Q. And you will constantly be aware that if people are speaking on your left-hand side you cannot hear them as well as if they are sitting to your right?

A. I do have a problem to my left, yes.

Q. And you do not need a doctor to tell you that you cannot hear as well on the left as on the right, do you?

A. No.

Q. So in 1987 you would have been aware that you could not hear as well on the left as you could on the right?

A. Probably, yes."

23. He was asked more questions about that on page 40. He said:

"A. I knew I had a problem but I didn't know the extent of it or the reason why. I knew I did have it. I presumed it was wax. I had suffered with that.

Q. But we have been over that point, have we not, that wax comes and goes----

A. It doesn't just come and go. It does not come straightaway and then vanishes.

Q. When it is removed, your hearing improves again?

A. It does, yes.

Q. And we have been over the point that your hearing has never improved since 1987.

A. No."

24. He gave other answers not dissimilar to these, but I do not find it necessary to refer to any further extracts from his evidence.
25. In addition, there was material before the court in the shape of the report of Mr Jones (to which I have already referred), and he said in relation to the claimant's hearing loss:

"Mr Sage is aware that his left hearing is poorer than his right. He has noticed that when he is in an environment, particularly if there is any background noise, that he struggles to hear what anyone says to him if they are positioned to his left. He has noticed this over the last 3-4 years."

26. In her judgment on the preliminary issue the Recorder said, at page 52E:

"In 1997 and 1988 he insisted when he had hearing tests that he was not told of any problem but he was aware of some hearing loss but that he attributed that to wax in his ears. Again, I think that is not an unreasonable account. I do not accept, as was said on behalf of the defendant, that acknowledging that there was some hearing loss was a concession on the claimant's part that constituted actual knowledge of hearing loss.

It was in 1996, in fact in an examination to gain employment at Toyota, that for the first time the claimant was aware of the link between his hearing loss, which was told to him for the first time that it was actually occupationally disabling, and gunfire.

It is correct, in my view, that the claimant left the army with no knowledge of the hearing defect and was under the impression that occasional hearing loss, which would have been gradual, was down to problems with wax. The claimant gradually became aware of hearing loss in a social situation but was not aware of the extent of the hearing loss and the attributability to firearms until the Toyota examination in 1996. He was not aware of his disadvantage and of the army's failure until the medical notes were released in 1998 to 1999."

27. In summary, therefore, the Recorder found (a) that the claimant did not know until 1996, the time of the Toyota test, of his hearing loss or that the loss of hearing was attributable to gunfire and (b) that, until 1998 or 1999 when the medical records were released, he did not know of his disadvantage and of the army's failure.
28. The claimant had to prove, the burden being on him, that it was not until after 22nd April 1996 that he acquired the knowledge required for bringing this action "for damages in respect of the relevant damage." The relevant damage was his leaving the army when suffering from a hearing deficit which would impair his prospects of obtaining alternative employment. The knowledge required for bringing an action for damages in respect of that damage was knowledge of the material facts about that damage, as defined in subsection (7), and the knowledge of the other relevant acts defined in subsection (8).
29. I take subsection (7) first. The material facts about the damage in this case were that the claimant was suffering from loss of hearing; the defendant had conducted hearing tests so that it was aware of the hearing loss; the defendant had not informed the claimant of the results of the tests; and the claimant had left the army. Those facts had to be such as would lead a reasonable person who had suffered the damage to consider it sufficiently serious to justify instituting proceedings against a defendant who did not dispute liability and was able to satisfy a judgment.
30. There is no doubt that the claimant was aware of the second, third and fourth of the material facts to which I have referred. The critical fact was the first, namely whether the claimant knew that he was suffering from a loss of hearing.
31. In my judgment, it was not reasonably open to the Recorder to find that the claimant was not aware of his loss of hearing until 1996, having regard to the evidence that she heard. It is quite clear from the evidence, to some of which I have referred, that the claimant did know that he had a loss of hearing before he was discharged and that it was a significant problem. It is true that he raised the issue of earwax, but he plainly accepted that the hearing problems caused by wax were intermittent and were improved by syringing; whereas the underlying hearing problems from which he suffered in his left ear were constant and had never improved, at any rate after 1987.
32. It seems to me that the tests conducted in 1987 and 1988 did no more than measure in medical terms the extent of the hearing loss from which the claimant knew that he was suffering.
33. Some reference has been made by Mr Fortune in his submissions to the question of seriousness, but we have been told that the question of seriousness was not in issue before the Recorder. Had it been, Miss Bradley tells us that she would have wished to cross-examine the claimant about it and would have wished to draw the attention of the Recorder to some of the authorities which explain what is meant by seriousness for the purposes of section 14A(7). In any event, it seems to me that, on the material before this court, the hearing loss in 1987 and up to 1989 was no less serious than it was in 1996, or indeed in 1999 when the claimant finally decided to institute these proceedings.
34. I would hold, therefore, that the claimant was aware of the material facts about the damage within the meaning of section 14A(6)(a).
35. I can turn briefly to subsection (8) and the "other relevant facts". The only relevant sub-paragraph is (a):

"that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; ..."

36. The omission which is alleged to constitute negligence here is the failure to inform. It is the claimant's case that this failure to inform caused him to leave the army.
37. Obviously, the claimant was aware that the defendant had failed to inform him of his hearing loss before his discharge. The Recorder failed to make a finding to that effect, perhaps it was rather because it was too obvious. But I suspect that it was because, in my judgment, the Recorder misdirected herself. Instead of making that finding, she made the irrelevant finding that the claimant was not aware that his loss of hearing was attributable to gunfire. The damage in respect of which damages are claimed in the second claim is the claimant's discharge from the army when he was suffering from a loss of hearing. Naturally he was aware of his discharge. For the reasons that I have given, he was also aware that he left the army suffering from a defect in his hearing. The fact that he may have been unaware of its cause has no relevance to section 14A. I would hold therefore that the claimant plainly had knowledge before April 1996 that his damage was attributable to the omission of which he complains.
38. The result is that in my judgment the Recorder should have decided that the claimant could not satisfy the requirements of section 14A, and that therefore the claim was statute-barred. I would therefore also allow the appeals against her second and third decisions.
39. LORD JUSTICE ROBERT WALKER: I agree.
40. LORD JUSTICE ALDOUS: I also agree.
ORDER: Appeal allowed; order of the Recorder set aside; claim dismissed with costs, not to be enforced without leave of the court; legal aid assessment of the Claimant's costs. (Order not part of approved judgment)