England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
His Honour Judge Bullimore
6DN033545

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 July 2008

Lord Justice Moore-Bick :

1. This is an a appeal against the order of His Honour Judge Bullimore in the Doncaster County Court dismissing the appellant's claim against the British Coal Corporation for damages for personal injury in the form of noise induced hearing loss.
2. The claimant is now very nearly 42 years of age. In 1982 when he was 16 he began working for the defendant at Harworth Colliery, Doncaster. Between 1982 and 2003 he did a variety of jobs including those of onsetter, button man and latterly underground locomotive driver. After British Coal disposed of its business in 1995 he worked for RJB Mining for a time and after that for UK Coal Mining Ltd, in both cases at Harworth Colliery.
3. The claimant has suffered over many years a degree of discomfort and temporary minor hearing loss as a result of a periodic build-up of wax and infections in his ears. He has consulted his doctor on a number of occasions as a result of which he has had his ears syringed and has been treated with olive oil to help soften and remove wax. His medical records, which were available at the trial, show that he consulted the doctor in November 1985 when he was 19 complaining of these problems and that he has done so from time to time since then. In November 1989 the defendant provided him with ear protectors, which he wore most of the time at work, though he sometimes found it necessary to remove them to enable him to hear instructions. From time to time, usually as part of routine medical check-ups, audiograms were carried out to test his hearing. One of these, carried out in March 1998 as part of a routine check-up for locomotive drivers, was of particular significance in the judge's view and it will be necessary to return to a little later. A further audiogram was carried out in August 2000 and two in November 2002.
4. In the early part of 2003 Mr. Field began to notice a slight ringing in his ears when he left work which would clear by the time he got home. He also found that his wife started to complain that he had the television on too loud. Eventually, in October 2003 he spoke to his Union and as a result in November 2003 he was referred to a consultant ENT surgeon, Mr. Clegg, who carried out further tests and diagnosed mild noise induced hearing loss.
5. Following that diagnosis the claimant's Union wrote to British Coal's insurers putting forward a claim on his behalf. Eventually they responded in August 2004 refusing to make an offer of compensation because, they said, his loss of hearing was too small to justify compensation.
6. The claimant began the present proceedings on 8^th August 2006 claiming damages for negligence and breach of statutory duty. In its defence the defendant contended that the claim was time-barred under the Limitation Act 1980, the cause of action having accrued more than three years before the issue of the proceedings. It also contended that the claimant had actual or constructive knowledge of the injury more than 3 years before the issue of proceedings and was therefore unable to take advantage of section 11 of the Limitation Act 1980. The claimant accepted that his cause of action had accrued more than three years before the issue of proceedings. That was inevitable given that the defendant had ceased to employ him when it disposed of its business in 1995. However, he denied that he was precluded from relying on section 11 because he did not know that he had suffered an injury until he received Mr. Clegg's advice in November 2003. He indicated that if necessary he would ask the court to exercise its discretion under section 33 of the Act to extend time sufficiently to enable his claim to proceed.
7. Section 11 of the Limitation Act 1980 provides as follows:

"11.— Special time limit for actions in respect of personal injuries.

(1) 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.

(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the period applicable is three years from—

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

(b) the date of knowledge (if later) of the person injured."

8. The material parts of section 14 provide as follows:

"14. — Definition of date of knowledge for purposes of sections 11 and 12.

(1) . . . . 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;

. . . ;

(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.

(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."

9. Section 33 of the Act provides as follows:

"33.— Discretionary exclusion of time limit for actions in respect of personal injuries or death

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 . . . . of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."

10. An order was made for the determination of the limitation question as a preliminary issue and the trial came on before Judge Bullimore sitting at Sheffield on 21^st September 2007. There were two main points for determination: whether the claim was time-barred under section 11; and if so, whether the court should exercise its discretion under section 33 to allow the claim to proceed. Having considered the decision of the House of Lords in Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 and the decision of this court in Y v Catholic Care (Diocese of Leeds) and the Home Office [2006] EWCA Civ 1534, the judge held in paragraph 22 of his judgment that when considering whether the injury was significant within the meaning of section 14(2) of the Limitation Act the position was to be judged by reference to an objective evaluation of the facts without regard to the claimant's individual history and circumstances. Applying that principle he held that the claimant must be taken to have known in 1998 that the injury was significant; consequently his claim was time-barred because proceedings had not been brought within the period prescribed by section 11. He declined to exercise his discretion under section 33 in favour of disapplying section 11 and therefore dismissed the claim.
11. However, the judge seems to have had second thoughts, or at least some misgivings about his decision, because following the receipt of written submissions he granted an application for permission to appeal in the following terms:

"My view of the law was that the claimant objectively was to be taken as having constructive knowledge as at December 1998 though he had no subjective knowledge of the fact and cause of his hearing impairment until his surgeon advised in November 2003. My decision was based on the Catholic Care case and counsel's argument strongly suggests I misunderstood that and other authorities."

12. In the space on the form provided for additional reasons he wrote:

"1) It seems to me unsatisfactory that a claimant who is unaware of his condition and so not in a position to take any action or seek advice should nonetheless be held to have been aware.

2) The judgments in Catholic Care etc v Y [2006] EWCA Civ 1534 and paragraphs 45 & 86 in particular in imposing an objective test under s.14(2) of L.A. '80 do not appear to give weight to 'whether the person whose date of knowledge is in question' points to a subjective assessment (at least in part) . . . ."

13. The primary ground of appeal in this case is that the judge was wrong to hold that the state of the claimant's knowledge for the purposes of section 14(2) of the Limitation Act 1980 was to be determined by reference to an objective evaluation of the facts and without regard to whether the claimant was or was not actually aware that he had suffered an injury. Mr. Huckle submitted that the judge had found that the claimant was unaware that he had suffered an injury of any kind until November 2003 and before that time had no reason to attribute his hearing problems to anything other than wax and infections. Accordingly, although the facts as they are now known to have existed show that the claimant's problem was not the result of wax or infections, the judge's findings show that he believed they were and that he was not put on enquiry until much later. Accordingly he could not be fixed with constructive knowledge of his condition. In that context it is worth noting that in paragraph 6 of his judgment the judge referred to the fact that the defendant had not pressed for a finding that the claimant had had actual knowledge of his hearing impairment until he was told of it by Mr. Clegg, but that it had contended that he had constructive knowledge of it by the end of 1991 at the latest.
14. In view of the judge's reasons for giving permission to appeal and the nature of the argument put forward by Mr. Huckle I think it helpful to begin with the judge's findings of fact. In paragraph 17 he made extensive findings about the contents of the claimant's medical records, interspersed with comments and a few additional findings based on other parts of the evidence. They included a finding that at a routine examination on 25^th March 1998 the doctor who had examined the claimant's ears had entered in the notes "NAD" ("no abnormality detected") and a reference to reduced acuity on the right hand side. The notes made at the time of the next routine examination in August 2000 contained similar comments. The judge referred to the fact that in cross-examination the claimant had said that he believed his hearing problem had been due to wax and infections, but that he had agreed that in the light of the medical notes that that was difficult to maintain. He noted that the claimant had said that despite the measured reduction in acuity, he had not noticed that the hearing in his right ear had got worse.
15. In paragraph 19 the judge found that the claimant was not aware of hearing loss apart from when he suffered from a build-up of wax or infection and in paragraph 19(bis) he found that over the years the claimant did not consider that his hearing was impaired otherwise than by wax or infection from time to time. He recorded that it was common ground that the claimant was not shown the audiograms, although in evidence he had agreed readily enough that his hearing was 'down' on the right.
16. Paragraph 24 of the judgment is of some importance. In it the judge said this:

"In my view, therefore, I do not have to consider why the claimant did not consider he had suffered an injury (i.e. an impairment of hearing not simply resulting from wax and/or infection), or what personal characteristics led to that conclusion, but only whether a reasonable man in his position would have done so. Having reviewed the various entries, it seems to me that the drivers' examination on 25 March 1998 when no abnormality was detected in either ear and the fact the clamant seems to have been aware that he had a hearing problem, are the latest point in time when a reasonable man in his position would have considered there was a significant injury as defined in the Act. At the very least, at that point, he would have sought medical help to determine the nature of his injury, i.e. why despite the absence of wax or infection, his hearing was impaired. That would have been reasonable for him to seek, and overall it would have been knowledge he might reasonably have been expected to acquire. On the facts, I do not think that an earlier date should be taken; it is only in March 1998 that he was aware that there were no problems of wax or infection that could account for his hearing problem."

17. In paragraph 26 of his judgment the judge held for the reasons he had given earlier (which I think must include a reference to paragraphs 22 and 24 of the judgment) that in March 1998 the claimant was in a position to know that he had had some hearing impairment not explicable by wax or infection and could then reasonably have taken steps to enquire into the matter. Had he done so he would have received the same sort of advice as that which he received from Mr. Clegg in November 2003.
18. Finally, it is necessary to mention that when summarising his conclusions in relation to the exercise of his powers under section 33 the judge said this:

"For those reasons, but with regret, because I do not consider the clamant himself was aware he had a hearing problem not attributable to wax or infection until he had received Mr. Clegg's report, I do not consider this is a case where I ought to disapply the effect of section 11." (Emphasis added.)

19. In my view it is not easy to reconcile the judge's conclusions in paragraphs 24 and 26 with his findings in paragraphs 19, 19(bis) and 33. On the one hand he seems to be saying in paragraph 24 that the claimant was aware in March 1998 that he had a minor problem with his hearing that was not caused by wax or infection such that a reasonable person in his position would have taken steps to investigate the problem. On the other hand, he makes clear findings in paragraphs 19, 19(bis) and 33 that until he received Mr. Clegg's report the claimant did not know that his reduced sense of hearing was due to anything other than the temporary effects of the intermittent build-up of wax and infections. Having looked at the transcript of the claimant's cross-examination, I think that the confusion may have been partly caused by the fact that questions were put to the claimant on the assumption that he was told at the time of the examinations in March 1998 and August 2000 that the doctor had not detected any abnormality in his ears without that ever being clearly established. Indeed, paragraphs 19(bis) and 33 contain clear indications to the contrary. It may be, however, that the explanation is ultimately to be found in paragraph 22 of the judgment in which the judge directed himself that it was necessary for him to make an objective evaluation of the facts without regard to the claimant's individual history and circumstances. The facts were that at the time of the examination in March 1998 the claimant's hearing in his right ear was slightly impaired and that no abnormality had been detected. No doubt a reasonable man knowing both those facts would think it sensible to take advice and that seems to have been the basis on which the judge reached his decision. The judge appears to have thought that he was bound to attribute to the claimant the knowledge that he would have acquired in those circumstances, despite the fact that he did not consider him to have been in that position. That goes some way towards explaining the remarks he made when giving permission to appeal.
20. The correct interpretation of sections 14(2) and (3) of the Limitation Act 1980 was clarified by the House of Lords in A v Hoare [2008] UKHL 6. For present purposes it is sufficient to refer to paragraph 34 of Lord Hoffmann's speech in which he said:

"Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally "subjective" in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed "objective" knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would "reasonably" have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."

21. One begins with what the claimant knew at any given time – in this case in March 1998. He accepted that he knew that he had slight hearing loss on the right hand side, but he was not shown the audiogram and there is no finding that it was discussed with him or that he was told that nothing abnormal had been discovered with his ears. As the judge found, he continued to believe that such problems as he experienced were due to wax and infection. He was simply told that his hearing was 'a bit down on the right' but that he was fit to continue work as a locomotive driver.
22. The judge's findings, therefore, are to the effect that the claimant did not have actual knowledge of an injury, in the sense that he knew that his hearing had been impaired; all he knew at the time was that he had an intermittent condition that was essentially temporary in nature. The critical issue, therefore, is that of constructive knowledge, that is, whether the claimant could reasonably have been expected to obtain further information tending to show that he had suffered an injury.
23. Mr. Copnall submitted that paragraph 24 of the judgment contains a finding of fact that the claimant was aware in 1998 that he had a problem with his hearing of more than a temporary nature. In my view, however, that paragraph must be read as containing the judge's conclusions on the application of section 14(2) and (3) to the case before him, rather than simple findings of fact, and as such they cannot in my view be reconciled with his primary findings. As I have indicated, I think the reason for that is that he wrongly thought that he was required to attribute to the claimant a knowledge of the facts which he did not actually possess, as well as the additional knowledge which a reasonable man possessed of that knowledge would have discovered. If the claimant had been aware of the fact that the medical examiner had detected no abnormality with his ears, I can well see that he could reasonably have been expected to have taken some steps to obtain further medical advice. That is what he did in 2003 when he began to experience tinnitus and his wife started to complain that the television was too loud. However, I find it difficult to accept that he could reasonably have been expected to seek further medical advice in March 1998 (or for that matter August 2000) while he still had reason to ascribe his symptoms to recurrent problems with wax and infections, especially when those who carried out the tests gave him to understand that there was nothing much wrong with his hearing and that he was fit to continue work. Mr. Copnall submitted that the claimant had chronic hearing difficulties and suggested that he must have been aware of the fact. To an extent that is true, but the judge's findings show that he attributed them to regular problems with wax and infections and had good reason to do so. In those circumstances it is impossible to say that the claimant knew he had suffered injury just because his hearing was slightly 'down'.
24. If one adopts the approach described by Lord Hoffmann in A v Hoare it is apparent that in this case the claimant was not aware in 1998 that he had suffered an injury and that his knowledge of his condition was not such as would lead a reasonable man in his position to seek further medical advice. The claimant therefore did not know that the injury in respect of which he now claims compensation was significant until he received Mr. Clegg's report in November 2003 and consequently his claim was brought within the time allowed under section 11 of the Act.
25. I would therefore allow the appeal. In those circumstances the question whether the judge should have exercised his powers under section 33 in favour of the claimant does not arise.

Lord Justice Lawrence Collins:

26. I agree.

Lord Justice May:

27. I agree that this appeal should be allowed for the reasons given by Moore-Bick L.J.