England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HER HONOUR JUDGE DE HAAS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2008

Lord Justice Maurice Kay:

1. The appellant is employed in the Liverpool docks. Between 1967 and 1980 he was employed by the second and third respondents, and between 1980 and 1995 he was employed by the first respondent.
2. On 26 August 2005 he issued these proceedings, claiming damages for personal injury. The allegation is one of exposure to excessive levels of noise which caused him to suffer noise-induced hearing loss. The evidence on which he relies includes a diagnosis of bilateral high frequency sensorineural hearing loss, the shape of which is compatible with damage to the inner ear. The overall disability is put at 20% but there is a subtraction of 6% to allow for natural degeneration. Accordingly the noise-induced disability is put at 14%.
3. In the proceedings all the respondents pleaded a limitation defence. On 26 and 27 June 2008 that was heard as a preliminary issue by HHJ de Haas QC. She held that the appellant's date of knowledge, for the purposes of section 11 of the Limitation Act 1980, was August 1996 and the proceedings were issued six years out of time. She further refused to allow the action to proceed by reference to the discretion provided by section 33 of the Limitation Act.
4. The evidence established that the appellant's work in the docks was in a noisy environment and that the appellant was not provided with protective equipment. The evidence about the appellant's date of knowledge of matters relevant to section 11 and section 14 of the 1980 Act, on the findings of the judge, was to the following effect. In 1991 the appellant had completed a questionnaire in which he had said that although his hearing was normal he did have to shout to make himself heard at work and that this was for "half the time". He was given an audiogram at that time administered by Nurse Ann Deal, an occupational health nurse working in the docks. Her evidence, although much criticised by counsel then appearing for the appellant at trial, was accepted by the judge, and Mr Huckle, who did not appear at the trial, concedes that he is in no position to challenge the findings of fact based on her evidence.
5. The 1991 audiogram was administered on 23 January of that year. The recorded result was described as "4-RH", which means in Nurse Deal's terms "warning on right high tones". The reference to "4-RH" meant that a warning would have been given by her to the appellant at that time in accordance with her usual practice, although unsurprisingly she could not remember actually giving it. She said that she would have told the claimant that he should wear ear protection and she would advise him as to the length of time to be spent in a noisy environment. She said that she would also have warned him that it would get worse if steps were not taken to address his loss of hearing.
6. The next relevant date is 1995, when a second audiogram was administered by Nurse Deal. It enabled a comparison to be made with the 1991 results. That comparison showed a change of 15 decibels. She repeated that she would again have given a warning and advice to the appellant. She recorded on that occasion "3-RH" which referred to "right high tones loss", 3 being a more serious record than 4 and indicating that there should be a medical referral. She also recorded "4-LB", which means that a warning should also be given as to a loss in the left ear both at the high and low tones. Nurse Deal said that she would have drawn all these matters to the attention of the appellant on that occasion. She found him fit to work in the job that he was then doing. His level of hearing was such that he could still hear but he should be wearing ear protectors in any event. She said that she would have told the appellant, as she always does in such circumstances, that he should be careful how long he worked in a noisy environment and that he should wear ear protection. She conceded that the appellant himself did not complain of any sense of reduced hearing capacity between the two audiograms.
7. The next material date is 27 August 1996. It was that that the judge found to be "most critical". On that occasion the appellant attended his general practitioner's surgery where it seems he was seen by the practice nurse. Her note of that date records that this blood was taken for some tests irrelevant to his hearing. However, the note then goes on to record that on that occasion the appellant was complaining of hearing problems. She examined both of his ears and found them both to be wax-free. She advised him to make an appointment to see the doctor.
8. In fact the appellant did not seek further medical advice at that time. The next significant date was in April 2004 when he saw a welfare rights adviser employed by his solicitor who considered the appellant to be "quite hard of hearing". That advisor asked about previous employment and brought up the subject of noise-induced hearing loss. He advised the appellant to see a doctor. On 21 June 2004 the general practitioner referred the appellant to the ENT department at the local hospital. The referral letter said that he "has reported gradual onset deafness bilaterally over the last year or so." On 1 September 2004 the appellant was seen at the hospital. There was a reference to:

"gradual reduction in hearing over two years… difficulty with background noise, no previous problems with ears… noise exposure 25 years docks, no ear protection"

9. The specialist registrar wrote to the general practitioner on 28 September 2004. She said:

"Thank you for referring this 52 year old gentleman … with a gradual deterioration in his hearing over the last two years. He finds it very difficult in situations where there is background noise and in open meetings. He is otherwise fit and well and has not had any previous problems with his ears. He did work on the Docks for 25 years where he was exposed to a fair amount of noise without the benefit of a ear protection.

His audiogram showed bilateral asymmetrical high tone sensori neural hearing loss, with relatively normal thresholds at the lower and mid-frequencies."

10. On 29 September 2005 the appellant saw the consultant, Mr McCormick, who is the expert witness on whom he relies in these proceedings. Mr McCormick recorded the past history in this passage:

"Mr Teague reported to me that he had worked on the docks from 1967 until 1995. This involved general duties and he was exposed to loud noise from mechanical plant operations, cranes and also the general noise of loading and unloading roll-on roll-off ferries from engine noise to metallic noise from chains banging etc. Ear protection was not provided.

Since 1997 he has been involved in a clerical job as project worker. This was not noisy.

He told me he had noticed increasing problems with his hearing for the past two to three years. His present position means that he is a secretary at certain meetings and struggles when there is background noise or in a multiple conversation situation."

11. It was in that document that Mr McCormick diagnosed bilateral high frequency sensorineural hearing loss, the shape of which is compatible with the noise damage to the inner ear, and in which he assessed the overall disability at 20% with an appropriate subtraction of 6% for the processes of natural degeneration. The claim form had been issued some four weeks before the date of that report.
12. I now refer to the statutory provisions. By section 11 of the 1980 Act, an action for damages for personal injury must be brought within three years of the date on which the cause of action accrued or of the date of knowledge, if later, of the person injured. The date of knowledge, which is then the subject of further provision in section 14, is defined as the date on which the claimant first had knowledge of the following facts:

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

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

(c)the identity of the defendant; and

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

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

By Section 14 (2) an injury would be considered significant if the claimant:

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.

By Section 14 (3):

"A person's knowledge includes knowledge which he might reasonably have been expressly 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."

I shall refer to section 33 of the Act at the end of this judgment.

13. The judge's findings included the acceptance of the evidence of Nurse Deal to which I have referred and included the description of the meeting with the nurse on 27 August 1996 as being the subject of "the most critical record". Further findings of importance are to be found in these passages:

"I find that he knew perfectly well that 'the injury was attributable in whole or in part to an act or omission which is alleged to constitute negligence'. He certainly knew by 1996.

If he had sought the advice of a doctor (as he had been advised in 1995 and 1996) he would have known the extent of his hearing loss. He himself chose not to do so, notwithstanding that he is an intelligent and articulate gentleman.

In my judgment, a reasonable person would and should have accepted such advice and obtained the relevant knowledge about the injury."

14. The judge then made some adverse credible findings as regards the appellant's evidence and indeed the evidence of his initial legal adviser, and she added of the appellant:

"In my judgment he knew the relevant history throughout and he said this…because he himself well realised this was the relevant cause.

It is also relevant to note that in this case the Claimant himself failed to see a doctor notwithstanding a real problem with hearing during the preceding two years. This shows that in relation to certain matters the Claimant does not seek medical advice when he ought to have done so.

In the circumstances, I find that by 1996 he had the relevant knowledge and the limitation period expired in 1999."

15. The grounds of appeal seem to me to divide into two categories. The first relates to the refusal of the judge to admit certain evidence. Secondly, it is in the form of an attack on the findings of the judge on some issues.
16. Turning first to the matter of the evidence that was not admitted: this was in the form of a supplementary report from Mr McCormick. It had been produced only shortly before the hearing. Its gist was to find that the audiogram results in 1991 and 1995 were consistent with a lower level of disability than the audiogram results in 2004 which were obtained in the course of preparation of the litigation. The judge refused to admit this additional material on the ground that in her view it was irrelevant, because what was important was what the appellant knew and believed in 1991 and 1995, not what an expert witness now considers to be the appropriate interpretation of the audiograms. I say at once that in my view the judge ought to have admitted that evidence. While she was correct to say that what mattered was what the appellant knew and experienced at the time rather than an expert witness's retrospective opinion, the fact that that opinion gave some support to the appellant's contention that he did not feel significantly impaired in 1991 rendered it of potential relevance on the issue of his credibility. However, in the event the judge did not find that the appellant was fixed with the requisite knowledge in 1991 or1995. She found that that only occurred in August 1996, and Mr McCormick's supplementary report did not advert to the position in 1996, as to which there were no available audiograms. Accordingly, although the judge was wrong to exclude the evidence at the time she made her ruling by reference to relevance, I do not consider that that error in itself undermines her eventual conclusion.
17. The remaining grounds of appeal in relation to the section 14 issues seem to be to be inter-related. Mr Huckle criticises the judge's conclusion that the appellant had requisite knowledge as at August 1996. His first submission is that the judge made no finding as to the level of symptomology at that time such as to justify characterisation of the injury as "significant". I have no doubt that she did make a finding. She had earlier set out the statutory requirements of knowledge and the material as to which knowledge was necessary and she eventually concluded that "by 1996 he had developed knowledge."
18. Mr Huckle's next submission is that the evidence did not support that finding. Leading counsel then representing the appellant had submitted to the judge that the medical record of 27 August 1996 was consistent with a fleeting reference to a transient problem and the fact that the appellant did not thereafter consult the doctor about it suggests that it lacked significance. The judge rejected that submission. In my judgment she was entitled to do so. 27 August 1996 has to be seen in the context of the audiograms and the advice and information given by Nurse Deal in 1991 and 1995. By 1996 the appellant knew that the audiograms disclosed impairment and deterioration and that he ought to avoid prolonged exposure to excessive noise without protective equipment. Moreover 26 August 1996 was the one occasion throughout the entire history when the appellant considered the problems to be sufficiently serious for him to raise it with a medical adviser on his own initiative. Even in 2004 he only resorted to medical advice as a result of a suggestion of a legal adviser. In my judgment the judge was entitled to make the finding that the appellant was aware of the significant hearing complaint in August 1996. Even if it had been asymptomatic in 1991 and 1995, that was not the position in August 1996.
19. The next submission is that the symptomology revealed by the August 1996 record is consistent with merely trivial as opposed to significant injury. In this regard, Mr Huckle refers to Furness v Firth Brown [2008] EWCA Civ 182, which is also a case concerned with noise-induced hearing loss. One of the passages to which Mr Huckle drew our attention is in the judgment of Smith LJ at paragraph 26, which is in these terms:

"The Limitation Act provides that the test for when a person is to be fixed with knowledge that his injury is significant is based upon what it was reasonable for him to think and do, given the facts of which he was aware. That is to be decided objectively by the judge applying standards of the ordinary reasonable man. In my judgment, it cannot be said that as soon as a man is aware of some minor inconvenience in respect of his hearing, he is to be fixed with the knowledge that he would acquire if he immediately took expert advice."

20. The present case is rather different from Furness. Here, unlike the position in Furness, the judge did make a finding, and it was based on a medical record which, as I have said, stands as the only occasion when the appellant considered the matter sufficiently serious to initiate complaint to a medical adviser. That resulted in advice which he ignored. It does not seem right to ascribe no significance to the one occasion when he did seek medical advice in the context of a case in which he contends for knowledge of a significant injury several years later, at a time when he did not seek medical advice until pressed to do so by a legal adviser. Moreover, as Mr Nolan QC submits, it is important to keep in mind the wording of section 14 (2). Its concern is with knowledge of "the injury" rather than with symptomological manifestations or consequential disability. This is why August 1996 has to be viewed in the context of what the appellant had discovered in 1991 and 1995.
21. The next question is whether the erroneous exclusion of Mr McCormick's supplementary report may impact on the finding about August 1996, and in my judgment it does not. Not only did it not address that time but, for the reasons I have just given, it does not address "injury" as opposed to "disability".
22. There has been some debate about the quantification of disability as at 1996. The evidence on this is somewhat confusing but again, for the reasons I have just referred to, I do not think that ultimately it affects the soundness of the judge's conclusions. In my judgment she applied the correct test to the evidence that was before her. She made appropriate and permissible findings and I do not think that Mr Huckle's criticisms of her judgment on section 11 and section 14 are cogent. Accordingly I dismiss the appeal on those grounds.
23. Also before the court, there is a renewed application for permission to appeal the refusal of the judge to allow the proceedings to go forward as an exercise in discretion under section 33. So far as that is concerned, Smith LJ refused permission, plainly taking the view that any appeal would not have a real prospect of success. Section 33 confers upon a trial judge a wide discretion and, as is well-known, it is particularly difficult to overturn the exercise of such a discretion on appeal. We invited Mr Huckle to go through the judge's rulings on section 33 line by line, pointing out where it could be said that the judge had gone wrong. In my judgment that exposed the weakness of the proposed appeal on section 33. I am satisfied that the judge reached a conclusion that was open to her and she sufficiently and properly explained her reasons.
24. So far as section 33 is concerned I would refuse permission to appeal.

Lord Justice Wall:

25. I agree.

Lord Justice Moses:

26. I also agree. So the appeal will be dismissed and the application for permission to appeal refused.

Order: Appeal dismissed; application for permission to appeal refused