England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE DEDMAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th June 2008

Lord Justice Dyson:

1. I would give permission to appeal in this case. The judge found that the claim was statute-barred because the claimant had knowledge for the purposes of section 14(1)(c) of the Limitation Act 1980 in October 2002, that is more than three years before the proceedings were issued in January 2006; he also refused to exercise his discretion under section 33 to disapply section 11; and finally he held that he would have dismissed the claim in any event.
2. In a cogent skeleton argument Mr McNair submits that the judge erred in all three of his decisions. I have doubts as to whether the challenge to the decision under section 33 has real prospects of success. It is difficult to show that the exercise of discretion was plainly wrong, but since I am persuaded that an appeal against the first and third decisions does have real prospects of success, I would grant permission to appeal on all three points.
3. As regards the date of knowledge, the judge gave no reasons for rejecting the claimant's unchallenged evidence that he attributed his shoulder injury to the road traffic accident until well into 2003, or for concluding that the claimant knew in October 2002 that his shoulder injury was attributable to his work.
4. As regards the question of liability the critical question was whether the claimant's work involved his arm being elevated to a sufficient angle and with sufficient repetitiveness. The claimant's case was that the angle exceeded 60 degrees; the defendant's case was that it was no more than about 45 degrees. The difference turned on rather technical issues of how the angle should be measured, having regard to the structure of the shoulder and the angle of the torso. There was considerable cross-examination of the medical and ergonomic experts on this. This issue was also the subject of detailed written submissions by counsel to the judge at the close of the evidence. The judge dealt with his assessment of the technical issues in two short paragraphs, paragraphs 26 and 31. In these paragraphs it seems that he did no more than to say that he preferred the opinion of expert A to that of expert B. It is difficult to see why the judge reached these conclusions. In the light of Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, and in particular the passage at page 382A, there are real prospects of success in relation to the adequacy of the reasons given by the judge for his conclusions.

Lord Justice Maurice Kay::

5. I agree.

Order: Application granted