England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DONCASTER COUNTY COURT
His Honour Judge Bullimore
5DN05298

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2007

Lady Justice Smith :

Introduction

1. This is an appeal brought with the permission of Rix LJ against a preliminary decision of His Honour Judge Bullimore in an action brought in the Doncaster County Court. The claimant, James Mackie, claimed damages for noise induced deafness allegedly suffered as the result of exposure to noise during his employment with British Coal Corporation (BCC) between 1981 and 1993. He commenced proceedings in December 2005. The Secretary of State for Trade and Industry, who is now responsible for the liabilities of BCC, pleaded that the claim was brought out of time and is statute-barred. In a judgment given on 3^rd November 2006, Judge Bullimore held that the claim was not statute-barred because it was not until 2004 that the claimant had the knowledge necessary to commence his action. The Secretary of State now appeals against that decision.

Factual Background

2. I take the factual background from the evidence given by the claimant in the course of the hearing of the preliminary issue. It is taken in part from his written statement which was treated as his evidence in chief and in part from cross examination.
3. The claimant was born in 1964 and began work in 1981 as an apprentice electrician with BCC at Bentley Colliery near Doncaster. He continued to work at Bentley Colliery until 1993. He alleges that, from about 1984 or 1985 when he began to work underground, he was exposed to very loud noise. In due course, he was given ear muffs and advised to wear them. He thought that this was in about 1990, but on being shown a document from his personnel records, he accepted that it appeared that he had been issued with ear protectors in late 1987.
4. His evidence was that he began to notice slight difficulties with his hearing in about 1990 and these increased over the next 3 years. In about 1992, he had been given the opportunity to have his hearing tested. In oral evidence, he said that he was not sure whether this opportunity was provided by his employers or by his trade union, the National Union of Mineworkers (NUM). However, his pleaded case and that set out in his written statement was that it had been the employers who had arranged the test. In any event, he took the opportunity to have a test, he said, because all the other men were doing so. A number of men went to Wakefield together, by bus, to have the test.
5. At this time, in 1992, the claimant knew that hearing loss could be caused by exposure to noise and he told the judge that he thought that his hearing might have been damaged by noise. Some time after the hearing test, he was called to see a union official, who showed him a letter which indicated that he was suffering from a hearing loss of 9.98 dB. That letter is not available and it is not known who had written it. The claimant's evidence about what the union official told him was not entirely clear. At different times in his evidence, the claimant said that the union official had told him that 'he did not have a problem', that he 'need not worry' and that he 'did not have a claim' or 'did not have a case'. The claimant said that he came to think that his hearing must be naturally slightly less acute than that of other people. However, he did not say that that is what the union official had told him.
6. In the course of cross-examination, the claimant was shown two letters written to BCC by a solicitor at the Manchester office of the firm of Brian Thompson and Partners (Thompsons), a firm which often acts for trades unions and has acted for the NUM. The first letter was dated 13^th May 1992. Its heading set out the claimant's name, address, date of birth, National Insurance number and 'works number'. It stated that the firm was acting for the claimant in a claim for damages for occupational deafness. The letter then set out a short, accurate, account of the claimant's working history. The claimant told the judge that he had no knowledge that Thompsons had ever acted for him in respect of a deafness claim. He was unable to explain how the firm could have acquired the information set out in the letter, although he suggested that BCC would have known all the facts. He was also shown a letter dated 26^th August 1992, in which Thompsons advised BCC that they were closing the claimant's file. In other words, they were abandoning his claim. In this letter, there was a reference to a letter from BCC to Thompsons, dated 31^st July 1992, which appears likely to have been BCC's response to Thompson's letter of 13^th May. Unfortunately this intermediate letter is not available. The claimant was unable to say whether either or both of the letters produced pre-dated or post-dated the hearing test. However, he accepted in evidence that he probably went for the hearing test after 13^th May 1992.
7. The claimant said that, in 1993, he became aware that fellow employees who had hearing loss of 10 dB were bringing claims for damages against BCC. However, he did not take any further advice himself. He said that he did not understand that 10 dB hearing loss was only a very little more than 9.98 dB and he did not seek further advice to clarify his own position.
8. In December 1993, the claimant was made redundant. A few months later he found work with Doncaster MBC where his working conditions were quieter. This, he explained, accentuated his realisation that he had a hearing loss.
9. In December 2003, the claimant consulted Beresfords, solicitors, in respect of a possible claim for lung damage arising from his work at Bentley Colliery. They also advised him about the possibility of claiming damages for vibration white finger and noise-induced deafness. Following that advice, the claimant instructed them to pursue a claim for deafness. He was examined by a consultant ENT surgeon, Mr Ali, on 28^th August 2004. We are told, although we have not seen the report, that Mr Ali found that the claimant had an average binaural hearing loss of 10.8 dB, attributable to noise exposure.

The Proceedings

10. A claim form was issued on 21^st December 2005 and served on the defendant on 24^th January 2006. In the pleadings, as extended by the provision of further information, the claimant contended for a date of knowledge in December 2003 when he consulted Beresfords. Until then, he claimed, he had not considered that he had significant hearing loss or hearing loss caused by noise. After the 1992 hearing test (which he said had been arranged by BCC as a health check) he had been told by a union official that he did not have a hearing problem; his hearing loss was only 9.98 dB. He had relied on that advice until 2003. Until Beresfords, he had never instructed a solicitor to intimate a claim for noise deafness.
11. The defendant's position was that the claimant's cause of action had accrued by December 1993, when his employment ended. Further, by that date he had had all the knowledge necessary to commence an action. He knew by 1992 that he had a significant hearing loss. Also, he knew that exposure to noise could damage the hearing and that damages for noise-induced hearing loss were being obtained within the mining industry.
12. When the defence had obtained and disclosed the claimant's employment and occupational health records, the defendant applied for limitation to be heard as a preliminary issue and provided further material in support of its case. As regards the suggestion that the hearing test of 1992 had been organised by the employer, it was pointed out that the occupational health records did not include a report of any such test. Reference was made to the correspondence between BCC and Thompsons in 1992. It was alleged that the hearing test of 1992 had taken place in the context of a claim for damages for NIHL.

The Judgment

13. Before explaining the judge's approach to the facts, it is convenient to set out the relevant provisions of the Limitation Act 1980. Section 11 provides that an action for damages for personal injuries shall not be brought after the expiration of the period of 3 years after (a) the date on which the cause of action accrued or (b) the date of knowledge (if later) of the person injured. Section 14 defines the date of knowledge of the person injured. It provides:

"14(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts:

(a) that the injury in question was significant; and

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

(c) the identity of the defendant, and

(d) (not applicable);

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.

(1A) (not applicable)

14(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.

14(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire

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

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

14. In the present case, the burden was on the claimant to show that he did not know, until 21^st December 2002 at the earliest (that is 3 years before he commenced his action), that he had a significant degree of hearing loss or that, until that date, he did not know that his hearing loss might be attributable to his exposure to noise at work.
15. The judge summarised the claimant's evidence about the events of 1992, how he had become aware of a hearing problem and had decided to have his hearing tested 'along with other men from the colliery'. He referred to the conversation the claimant had had with the union official who had said that he 'did not have a hearing problem' and that he 'did not have a case'. He continued:

"13. It is I think very difficult to know what the context was within which this test was held. As I say, I think he was one of many men at the colliery who were given the opportunity for this test, but there is that sense that there was also some further purpose behind it. Again, one does not know exactly what was said to the claimant or what he made of it. I am quite confident of the fact that he does not know the ins and outs of the Limitation Act and every time I do one of these cases, I come to the view that I do not really understand the ins and outs of the Act either. But if he had known that and was given this sort of general view, "You don't have a case; there's nothing wrong with your hearing; you've nothing to worry about", or something like that, would he have drawn the conclusion that he did not have a significant injury, although he might have some injury, or it was not an injury that was attributable to his working conditions or, although he did have an injury that was attributable to his working conditions, it simply was not enough to justify bringing a claim. The whole context is very difficult. Really what he understood about it, apart from the fact that he felt reassured, is not at all clear to me."

16. Immediately after that, the judge referred to the letters sent by Thompsons to BCC intimating a claim and then later abandoning it. Then he continued:

"17. Mr Mackie is adamant that he did not go to solicitors about this; he did not know about this correspondence, he did not give consent to a claim being intimated on his behalf, and so one has to assume it was something done on behalf of the Union. They, as it were, instigated the matter. Somebody must have pushed Thompsons into writing this letter. But of course, if Mr Mackie is right, the person who dealt with him was saying the results do not lead us to think you have a claim. So it is extraordinarily difficult to know how to resolve all this. One way would be to say in fact Mr Mackie is mistaken in his recollection about all this, that a claim was put forward on his behalf and he has forgotten that he agreed to that, but in the end it came to nothing and it was all a long time ago, or on the other hand, that somehow this was a case where matters progressed without him being informed at all and the claim was made, some investigation was made and then Thompsons pulled the plug on it, obviously realising it was not getting anywhere.

18. I do not think there is a satisfactory explanation for any of that. I have to say I find it very difficult to believe, even in the context of what one might consider mass litigation, that solicitors are likely to start a claim, or close the file and walk away from it without making sure that the individual concerned knows about it. But I do not think there is a clear answer to all that, and I am not sure that trying to come to some view about it is really going to help a huge amount."

17. The judge then completed his summary of the history, including the fact that the claimant knew in 1993 that workmates with 10 dB of hearing loss were making claims for damages. He accepted that the reason why the claimant had done nothing about taking further advice was because he had come to think that his own hearing loss was natural. He described the extent of the claimant's loss of amenity and also how he came to take advice from Beresfords in 2003.
18. The judge then held that the claimant knew in 1992 that he had significant hearing loss. There is no cross-appeal against that holding. He then turned to the second question namely when the claimant knew that his hearing difficulties might be attributable to noise exposure at work. On this issue, the judge said that he had some difficulty. He said:

30. But the real difficulty I have is this question of attributability, in the sense that that means capable of being attributed to, I think that had passed through his mind; he thought it was a possibility. That was something that was a real possibility. After all, he had been working in noisy conditions, that is the basis of his case. He had been provided with hearing protection. What else was there really that could have done damage, apart from this other explanation which he seems to have favoured at some stages anyway, namely that he just did not have as good hearing as other people.

31. If he thought it was capable of being attributed, then he had taken steps to investigate that and the answer had come back. With all the advantages that we have and knowledge of how this Act works and having done other of these cases, perhaps it is easy to say, "If I had been him, I would have said, 'What does it mean? Can I go and talk to the doctor about it? I would have gone to my GP and said, 'What does this mean?' or something like that, or pursued the matter further", but the claimant did not do that and did not think it was necessary to do that.

32. I have to say I struggle with this idea that once somebody thinks it is capable of being attributed to a particular cause, then whatever is said to him he cannot be dissuaded from that. Counsel have referred me to a case which I do not recall being referred to before, but I may have been, but it is a decision in 2000 called Sniezek v Bundy, a decision of Simon Brown, Judge LJJ and Bell J. Looking at that part of the report, which appears at page 213 in the Personal Injury Reports for that year, it is said:

"It is necessary to distinguish between a claimant who has a firm belief 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 that certainly describes the unfortunate Mr Sniezek who thought he had a problem and continued to believe that, although he was being told time and time again "There's nothing wrong with your throat", and on the other hand, 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."

33. The claimant, it seems to me, falls much more into the second category. I have accepted he believed he had a significant injury. It was at least capable of being attributed to his working conditions, but the enquiry that he made did not confirm that and he really took that at face value and did not pursue the matter any more."

19. The judge therefore concluded that the claimant had not had actual knowledge in 1992 that his deafness was attributable to his working conditions. He then went on to hold (under section 14(3)) that the claimant did not have constructive knowledge either because he had acted reasonably in not seeking further advice until he went to Beresfords in 2003. Accordingly the claim was not statute-barred.
20. Finally the judge observed that, if he had had to consider the discretionary provisions under section 33 of the Limitation Act, he would not have exercised his discretion to permit the action to proceed.

The Appeal

21. In this appeal, Mr Kramer for the defendant/appellant submitted that the judge went fundamentally wrong because he failed to make findings of fact which were central to the whole question of knowledge. Mr Kramer drew attention to paragraph 13 of the judgment; the judge had failed to decide what had happened in 1992. He ought to have analysed the evidence and to have made findings, on the balance of probabilities, as to whether Thompsons had been instructed to advance a claim on the claimant's behalf, who had arranged the hearing test and why and whether this had been arranged as part of the process of pursuing a claim against BCC. In the light of those findings, he should have analysed more carefully what the claimant had understood as the result of his conversation with the trade union official. Instead, the judge had accepted at face value the claimant's rather muddled and incomplete recollections of what had occurred and what he had understood.
22. Mr Skelt for the claimant/respondent submitted that the judge had been entitled to leave these factual matters unresolved because he found them difficult or impossible to decide. He accepted that the factual questions were not without importance but submitted that, in any event, they were not determinative of the final issue of when the claimant had knowledge that his (significant) hearing loss could be attributed to noise exposure.
23. In my view, it was not satisfactory for the judge to leave open the factual issues about the circumstances in which the claimant came to have his hearing tested in 1992 and in which Thompsons came to intimate a claim and later to withdraw it. Those factual matters were plainly of great importance. Without finding the facts, the judge was not in a position to apply the law. Unless and until this court finds the facts, we cannot decide whether the judge's final conclusion was sustainable.
24. I turn to consider the facts. In my view, the factual issues were not very difficult because the evidence forms a coherent whole. I start from the undisputed fact that Thompsons wrote to BCC on 13^th May 1992 intimating a claim for noise-induced hearing loss. It contained accurate personal information. Although I do not doubt that BCC had all that information in its possession, it is in my view extremely unlikely that BCC was the source of the information provided to Thompsons. It is far more likely that the information came from Mr Mackie. The fact that he does not remember providing it does not rule that out.
25. I consider next the likelihood that Thompsons would have intimated a claim without having any instructions from their client. Judge Bullimore considered it hard to believe that the solicitors would start a claim or close their file without making sure that the individual concerned knew about it. I agree. I think it is most unlikely that Thompsons intimated this claim without receiving some instructions from Mr Mackie. He says that he did not see solicitors. The judge plainly accepted that evidence and I will be loyal to that finding. But I think it highly likely that Mr Mackie completed a form provided by his trade union in which he set out his personal details, working history and noise exposure. His trade union must have sent the form to Thompsons, who then regarded themselves as instructed. Mr Skelt realistically accepted that that was probably what had happened. The judge regarded the claimant as an honest witness but it would be quite understandable if he had forgotten completing such a form.
26. If it is accepted that the claimant had instructed Thompsons, it is easy to understand how he came to have his hearing tested. It seems to me that it is highly likely that this was arranged either by Thompsons or by the NUM. The fact that a lot of men went together to Wakefield is not surprising. It seems likely that the NUM had advised all its members at Bentley Colliery of the possibility of claiming damages for deafness and was offering legal assistance and a medical examination to those who wanted it. It seems most unlikely that the test was arranged by BCC. Had it been, I would have expected to find the report of the results in Mr Mackie's occupational health records. They give the appearance of having been carefully preserved. Of course, I accept that some records might have been lost but the likelihood is that the report would have been there, if the test had been arranged by BCC. Also, if the test had been arranged by BCC, I would have expected the results to have been conveyed by a BCC employee (such as the works doctor or nurse) rather than a trade union official.
27. I turn to the interview with the trade union official. It seems to me likely that the letter which the official had was from Thompsons, informing him of the results of the claimant's hearing test and informing him that (for some reason) they could not advise that the claim should proceed. As Judge Bullimore said, it is unlikely that Thompson's would close their file on a case without ensuring that the person concerned knew about it. I think it likely that the purpose of this meeting was to convey to the claimant the news that the union's solicitors thought he did not have a valid claim. Such a conclusion is entirely consistent with the various things that the claimant remembered the union official saying.
28. That leaves only the question of what the claimant made of what the union official had said. The judge said that he found it very difficult to decide that, apart from the fact that the claimant felt reassured and came to think that he must have natural hearing loss. The union official had said things like: 'you don't have a case', 'there's nothing wrong with your hearing' and 'you've nothing to worry about'. As Wilson LJ pointed out in the course of argument, it is not suggested that the official said anything about attributability or causation. Indeed, it is not known whether the hearing test had been merely an audiometric test conducted by a technician to measure the claimant's hearing loss or whether the claimant had seen someone who could pass an opinion on the cause of any hearing loss that was found. Certainly, there is no hint from the claimant's evidence that anything the union official said could have been understood as suggesting that the test had revealed that the claimant had hearing loss caused by something other than noise exposure. It seems to me that the thrust of what the official was saying was that the claimant's hearing loss was too slight to justify making a claim. I do not find it entirely surprising that, over a period of time, the claimant should have come to think that his hearing was naturally a little less acute than other people's but that does not mean that that is what he was told by the union official.
29. It may be thought that, given the evidence that the claimant was told in 1992 that his hearing loss was slight, 'nothing to worry about' and not sufficient to warrant a claim, the judge's conclusion that this level of hearing loss was 'significant' was somewhat harsh. However, as Mr Skelt very fairly conceded, the claimant is now seeking to bring an action based on 10.8dB hearing loss and it was quite difficult for him to contend that a loss of 10.8 dB in 2004 was worth suing for but 9.98 dB in 1992 had not been.
30. I turn now to apply the law to the facts as I have found them to be. When did the claimant first have knowledge that his (significant) hearing loss was attributable to exposure to noise? The claimant frankly admitted that, before he went for his hearing test in 1992, he knew that noise could cause deafness and thought that his hearing difficulties might be due to noise at work. Was that enough for him to be fixed with knowledge of attributability within section 14(1)(b)? As the judge plainly accepted, all that is required is that the claimant knows that there is a real possibility that his injury is causally related to the acts or omissions of the defendant. That has been well established for many years but was confirmed in Spargo v North Essex District Health Authority [1997] PIQR 235. On his own evidence, the claimant knew before he went for his hearing test that there was a real possibility that his hearing loss had been caused by noise at work. That in my view is enough to justify the conclusion (for the purposes of sections 11 and 14) that he knew that his hearing loss was attributable to his working conditions. But, on the facts as I have found them, he went for a hearing test because he had, in effect, been offered legal assistance by his trade union. He went for the test with a view to bringing a claim for damages. In my view, on those facts, he plainly had knowledge that his hearing loss was capable of being attributed to noise exposure and that was enough to fix him with knowledge for the purposes of sections 11 and 14. The fact that afterwards he was told that he did not 'have a claim' or that there was 'nothing wrong with his hearing' did not deprive him of that knowledge.
31. However, the judge was plainly troubled by his impression (it was no more) that the claimant had come to understand that his hearing loss, such as it was, had not been caused by exposure to noise. The judge's conclusion was that, on account of that understanding, the claimant had not known that his hearing was attributable to noise. He said, at paragraph 33 of the judgment, that the inquiry the claimant made did not confirm that his hearing loss had been caused by noise. That must have been a reference to the hearing test and the conversation with the trade union official. The judge did not go so far as to find that the trade union official had in any way misled the claimant into believing that his hearing loss was of constitutional origin. He did not hold that the claimant's previous assumption that his hearing loss was due to noise had been displaced by advice to the contrary. Had he done so, there might have been some basis on which the judge could embark on a consideration of the judgments in Sniezek v Bundy (Letchworth) Ltd [2000] PIQR 213 and conclude that, because of the advice he had received, the claimant did not have actual knowledge that his condition might be attributable to his working conditions. In my view, Sniezek was not relevant to this case unless the judge could make a finding of the fact that the claimant had in some way been misled or given incorrect advice. There was no such finding of fact and no basis on which one could have been made. It follows that there was no need for the judge to consider (under section 14(3)) whether it had been reasonable for the claimant to take no further steps until, more than 10 years later, he received further advice about the cause of his deafness.
32. Even if the judge had been right to think that the claimant's assumption had been displaced by whatever the trade union official said, I could not agree with him that it was reasonable for the claimant to do nothing for the next ten years. By 1993, the claimant knew that he had significant injury, measured at 9.98 dB. Let us assume that he had been led to believe that it was not due to noise. In 1993, he learned that other miners at Bentley Colliery who had hearing loss of 10 dB were bringing claims for damages. The judge accepted that the claimant did not realise that 9.98 dB was only a little less than 10 dB. I will be loyal to that finding but, even so, I would expect a reasonable person to make enquiries about the significance of those figures and as to the reliability of the information he had (in theory) been given as to the cause of his deafness. He might have sought further advice from his trade union; he might have consulted a solicitor; he might have spoken to his general practitioner. But, I cannot accept that, given the other information and knowledge available to him, it was reasonable for him to do nothing at all to clarify his confused and uncertain state of mind.
33. I conclude that the judge fell into error in the ways that I have explained. In my judgment, the claimant had the knowledge necessary to commence an action against the defendant well before 21^st December 2002. As there is no cross-appeal in respect of the judge's indication that he would not have exercised his discretion under section 33 of the Limitation Act, the claim begun in December 2005 is statute-barred. I would allow the appeal and dismiss the claimant's claim.

Lord Justice Wilson: I agree.

Lord Justice Chadwick: I also agree.