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Case No.B2/1999/1220
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HH Judge ANSELL
Date: Friday 7 July 2000
Before:
LORD JUSTICE SIMON BROWN
LORD JUSTICE JUDGE
- and -
MR JUSTICE BELL
- - - - - - - - - -
JOSEPH SNIEZEK
Claimant and Respondent
- and -
BUNDY (LETCHWORTH) LIMITED
Defendant and Appellant
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Mr Patrick Vincent (instructed by Berryman Lace Mawer Solicitors,
London) for the Defendant/Appellant.
Mr Phillip Head (instructed by Messrs Woodfine Batcheldor Solicitors,
Bedford) for the Claimant/Respondent.
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE BELL:
1. This is the defendants' appeal against the judgment of His Honour Judge
Ansell at Luton County Court on 27 July 1999 on the trial of a preliminary
issue of whether Mr Joseph Sniezek's claim for damages for personal injuries
and consequential losses is barred by the provisions of the Limitation Act
1980.
2. The judge found that Mr Sniezek's claim was brought outside the limitation
period calculated in accordance with the provisions of sections 11 and 14 of
the Act, but he exercised his discretionary power under section 33 to direct
that the provisions of sections 11 and 14 should not apply to the claim, so
allowing the claim to proceed.
3. Section 11 of the Act applies to this personal injury claim by virtue of
section 11(1).
Section 11(3), so far as it is material to this case, provides that an action
to which section 11 applies "shall not be brought after the expiration of the
period applicable in accordance with subsection (4) ....."
Section 11(4), so far as it is material, provides that:
" ...... 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."
4. Section 14, so far as it is material, provides:
"(1) ...... in section[s] 11 .... 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 knowledge that any acts or omissions did or did not, as a matter of
law, involve negligence, nuisance or breach of duty is irrelevant."
(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
that he might reasonably be 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, act on) that advice."
5. The material provisions of section 33 are as follows:
"(1) if it appears to the court that it would be equitable to allow an action
to proceed having regard to the degree 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.
(3) In acting under this section the court shall have regard to all the
circumstances of the case and in particular to -
(a) the length of, and the reasons for, the delay on the part of the
plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or
likely to be adduced by the plaintiff or the defendant is or is likely to be
less cogent than if the action had been brought within the time allowed by
section 11 ...... ;
(c) the conduct of the defendant after the cause of action arose, including the
extent (if any) to which he responded to requests reasonably made by the
plaintiff for information or inspection for the purpose of ascertaining facts
which were or might be relevant to the plaintiff's cause of action against the
defendant;
(d) the duration of any disability of the plaintiff arising after the date of
the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he
knew whether or not the act or omission of the defendant, to which the injury
was attributable, might be capable at that time of giving rise to an action for
damages:
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other
expert advice and the nature of any such advice he may have received."
6. For the purpose of the preliminary issue the essential, primary facts are
that the claimant was born in Hungary in August 1936. He came to this country
in 1956. The judge heard him give evidence and concluded that his use of
English is not good.
7. He started working for the defendants in 1972 and became a chargehand
cleaner in March 1982. In about late 1983 he was made responsible for the
cleaning of an enclosed area which was devoted to a new process of coating
tubes with a green polymer. The tubes were dipped in a liquid and sprayed with
a polymer powder before being baked in an oven room within the enclosed
area.
8. The claimant was provided with special clothing and a filtered mask to
protect him from the dust which he collected in the cleaning process, but his
case is that lack of facilities to wash dust from the clothing before it was
removed and inadequacy of the mask (until it was replaced with a helmet in
about 1985) led to him inhaling dust while cleaning and when removing the suit.
He complains that in early 1984, within two months or so of starting the
particular cleaning work, he became aware of a burning sensation on his lips
and in his throat. His sore throats were bearable to start with. He did not
think he was suffering a permanent injury. He thought it was irritation from
the dust, but by March 1988 his symptoms were severe. He stopped doing the work
in question in March 1988 for orthopaedic reasons, but symptoms in his mouth
and throat are alleged to have continued and caused psychological damage. He
was dismissed from his employment in March 1989.
9. It is clear from the transcript of the claimant's evidence to the judge,
that from the very first the claimant has been convinced in his own mind that
his problems have been caused by inhaling dust at work. From early 1984 he
complained about his working conditions to his immediate superior, a Mr
Gazely. He remained convinced that he suffered from throat problems which were
caused by the dust at work despite expert advice to the contrary.
10. The claimant had first consulted his GP in August 1984 and he was referred
to an ENT clinic but he failed to attend.
11. He claims that he told his works medical officer about his throat condition
in January 1989.
12. In April 1989 his GP referred him for an ENT opinion for constant burning
in the throat and difficulty in swallowing. The consultant found no
abnormality in throat, nose or ears.
13. In May 1990 his GP referred him to hospital because he was coughing blood
and had a sore throat, but investigations were clear.
14. In the same year he went to see Robin Thompson and Partners, his union
solicitors, who requested a report on "the relation between his respiratory
problems and his work" from Dr R.M. Rudd, Consultant Physician and well known
expert witness. Dr Rudd examined the claimant in December 1990 and took a
detailed history. In January 1991 he reported to Robin Thompson and Partners
that the claimant did not have any discernible physical disability and that
there was no evidence to support the view that any of his symptoms were
attributable to his work. Dr Rudd expressed the view that it was clear that
anxiety and hypochondriasis were the main cause of the claimant's wide ranging
symptoms.
15. Following further complaints, however, the claimant was referred to the ENT
clinic at the Middlesex Hospital in the middle of 1992. Dr Bari, a hospital
doctor, wrote to the claimant's GP that a barium swallow revealed no
abnormality in the pharynx or oesophagus but that in his opinion the burning
sensation in the claimant's throat was most probably due to the chemicals and
fumes that he worked in for seven years. He feared that nothing could be done
for that. That opinion can be taken to offer some support for a harmful effect
of the claimant's working conditions, but no hard support for a diagnosable
injury, in my view. Moreover nothing abnormal was found on examinations at the
Middlesex Hospital in January 1993.
16. The claimant consulted his present solicitors on 31 December 1992. They
instructed Mr P.J. Robinson, a Senior ENT Registrar at the Middlesex and
University College Hospital, who examined the claimant in October 1993. On 20
January 1994 Mr Robinson reported on the claimant's lip, mouth and throat
symptoms as follows:
"My medical examination of the claimant did not find any other cause for his
symptoms, but in view of the subjective nature of the symptoms it is also
difficult to prove that he is actually experiencing the symptoms. However, it
seems likely that given the history of exposure to an apparent polymer in a hot
environment, that he may well have suffered from some hypersensitisation of his
upper aerodigestive tract, which has left him with symptoms of a burning
sensation of the lips and throat and discomfort on swallowing."
17. In May 1994 counsel (not Mr Head who appeared for the claimant at the trial
of the preliminary issue and on this appeal) advised that he was satisfied that
there was a factual and contemporaneous link between exposure to the
defendant's polymer dust and the claimant's symptoms but he required to know
the nature of the polymer and the associated risks.
18. In January 1995 a laboratory tentatively identified chromium in the filter
of the claimant's face mask, retained after leaving the defendants. Strange,
Strange and Gardner were instructed. In October 1995 they reported that they
needed to know the chemical composition of the material used to coat the
defendant's pipes especially the hardening agents since some types of agents
were known to cause respiratory problems. They suggested that the defendants
must have the necessary information. They deferred the question of
attribution of the claimant's condition to expert medical opinion.
19. In February 1996 counsel advised pre-action discovery. That was promptly
started but largely, as the judge found, because of opposition by the
defendants, even to the extent of non-compliance with a court order, it was not
until 30 June 1997 that the defendants identified the material coating powder.
It transpired that it contained Trimetallic Anhydride (TMA).
20. Towards the end of 1997 Professor Peter Hewitt reported descriptions of TMA
as a long established and recognised respiratory sensitiser and irritant with
effects on the nasal mucosa.
21. In January 1998 Mr Robinson, by then a consultant otolaryngologist,
concluded that there might be a basis for some of the claimant's symptoms
having occurred as a result of exposure to the powder containing TMA, but that
there was a large psychological overplay involved.
22. In June 1998 counsel advised that the claimant had a reasonable case
against the defendants, and his legal aid certificate was enlarged to allow
these proceedings to be issued on 14 September 1988. The Particulars of Claim
complain of the hazards involved in exposure to TMA and chromium.
23. Against that factual background the judge rejected the defendant's
contention that from 1984 the claimant had knowledge that his injury was
significant and that it was attributable to the act or omission of the
defendants for the purposes of section 14(1) of the Act, saying:
"I reject the defendants' contention in this case that the claimant had
knowledge from the start. He may have had a belief from the start, but that was
not knowledge for the purposes of the Act. Indeed, there is clear evidence in
this case that, notwithstanding what one might even term a strong belief on his
part, he recognised the need to get both medical and legal advice, which he did
on a number of occasions, consulting two sets of solicitors and I think going
to specialists on four or five occasions."
24. The judge found difficulty in deciding whether the claimant's knowledge
could be said to arise as late as 1997 as was contended for the claimant.
However, he concluded that the relevant date of knowledge was January 1994, the
date of Mr Robinson's report, but went on to conclude that this was a clear
case for the exercise of his discretion in the claimant's favour under section
33 to allow the claim to continue.
25. The challenge of Mr Vincent to the judge's conclusion on the date of
knowledge was founded on the proposition that where a claimant is convinced
that he is suffering from a significant injury which is attributable to his
employer's failure to provide a safe system of work, and remains so convinced
despite medical or other expert advice to the contrary, his firm belief is to
be treated as knowledge for the purposes of section 14. In the present case the
claimant thought that his throat condition was sufficiently serious to consult
his GP in August 1984. The threshold of significance is not high since the
statutory test assumes a defendant who does not dispute liability. There is
ample authority that the word "attributable" in section 14(1)(b) means no more
than "capable of being attributed to", and there was no candidate other than
the claimant's working conditions. So the claimant had the necessary knowledge
of significant injury and attribution in 1984 and the preliminary limitation
period of three years began to run then.
26. Mr Head contended that it flies in the face of common sense to suppose that
the claimant had knowledge of an injury which was significant when he was
repeatedly advised that he had no injury at all. In the light of that advice
the claimant could not be said to have had knowledge of any injury, let alone
one significant enough to justify instituting proceedings. Occupational disease
cases are potentially technical, and no reasonable person having taken the
reasonable steps which the claimant took to seek medical and other appropriate
expert advice would have considered that he had an injury which was
sufficiently serious to justify his instituting proceedings for damages. The
question in the present case, until July 1997, or January 1994 at the earliest,
was whether any injury existed at all. It was not the usual issue of whether a
known injury was capable of being attributed to a putative factor, which was a
lower threshold test than that which was required for knowledge of significant
injury.
27. Case authority on the application of section 14 of the 1980 Act is copious.
We were referred to five cases in particular.
28. Davis v. Ministry of Defence, Court of Appeal (Civil Division)
Transcript No.413 of 1986, was an application to strike out. The issue was upon
what date the Plaintiff first knew that his acknowledged dermatitis was
attributable to his employer's failure to provide him with safe working
conditions. The judge found that the Plaintiff had never ceased to associate
his dermatitis with conditions during his employment, and that he knew that his
injury was attributable to the material act or omission in the sense that he
knew or believed and was convinced that it was capable of attribution to that
and to nothing else.
29. Of this, May L.J. said at page 9 D-G of the transcript:
"With all respect to the learned judge, I think that he wrongly assimilated
what the appellant firmly believed throughout to what he knew. I have no
doubt, as I have said, that the appellant has always believed that his
dermatitis was due to his employers' fault and that he had a good claim against
them. However, it is clear that he was advised that he did not and the combined
state of mind of the appellant himself, as a layman, and that of his doctors
and legal advisers, which must be attributed to him by section 14(3) of the
1980 Act, cannot, in my opinion, so surely be said to have been such that
they knew, prior to the 10th November 1978 that the dermatitis was
capable of being attributed to the appellant's working conditions."
He took the view that on the evidence it would be wrong to strike out the
Plaintiff's claims.
30. In my view, however, Davis did not survive Nash v. Eli Lilley
& Co. [1993] 1 W.L.R.782. In that case the Plaintiffs claimed that
their injuries arose from their treatment with Opren. There was a preliminary
issue as to whether their claims were statute barred.
31. At page 795E to 796A, the Court pointed out that the appeal in Davis
was not from trial of a preliminary issue upon evidence:
"The decision does, however, appear to regard as arguable the contention that,
if a claimant is shown to have had knowledge, as we understand the meaning of
that word in this context, that the injury is attributable to the act or
omission of the defendant, the subsequent obtaining of expert advice for the
purpose of legal proceedings which says that the injury is not so attributable,
could retrospectively cause him never to have had such knowledge. We do not
accept that that contention is arguable. It seems to us to be in conflict with
the words of the statute.
The answer to the problem, we think, is to be found in the way in which the
court should, on the facts, approach and decide the question whether and when a
claimant's state of mind amounted to knowledge for the purpose of sections 11
and 14 of the Act. As we have said above, whether a claimant has knowledge
depends both upon the information he has received and upon what he makes of it.
If it appears that a claimant, while believing that his injury is attributable
to the act or omission of the defendant, realises that his belief requires
expert confirmation before he acquires such a degree of certainty of belief as
amounts to knowledge, then he will not have knowledge until that confirmation
is obtained. Frequently, as it seems to us, it will be safe for the court to
proceed upon the basis that a claimant did realise that he required
confirmation if he acted in a manner consistent with that state of mind even if
he is, as may frequently be, unable to recall with any degree of precision what
his state of mind was. Conclusions as to a claimant's state of mind will, we
think, usually be more securely based upon inference from conduct in the known
circumstances than from a claimant's later assertion as to how he now recalls
his then state of mind as between, for example, belief or knowledge. We add
that we have difficulty in perceiving how in any case where a claimant has
sought advice and taken proceedings, it can rightly be held that the claimant
had not then had relevant knowledge."
The antithesis between belief and knowledge which counsel for Nash and others
sought to derive from Davis was, "for the purposes of section 14(1) a false
antithesis": page 796B.
32. The judgment of the court continued, at page 796 C-H:
"3. The period of limitation begins to run when the plaintiff can first be said
to have knowledge of the nature of his injury to justify the particular
plaintiff taking the preliminary steps for the institution of proceedings
against the person or persons whose act or omission has caused the significant
injury concerned.
4. By section 14(3) "knowledge" for the purposes of section 14(1) includes
knowledge reasonably expected to be acquired. There will be cases in which a
firmly held belief actually held by the plaintiff precluded consideration of
any further steps which he might reasonably have taken to acquire from
knowledge of further facts before initiating proceedings. In other cases the
state of the plaintiff's belief would make it reasonable for him to make
further enquiries envisaged in section 14(3). The temporal and circumstantial
span of reasonable inquiry will depend on the factual context of the case and
the subjective characteristics of the individual plaintiff involved.
5. It is to be noted that a firm belief held by the plaintiff that his injury
was attributable to the act or omission of the defendant, but in respect of
which he thought it necessary to obtain reassurance or confirmation from
experts, medical or legal, or others, would not be regarded as knowledge until
the results of his inquiries was known to him or, if he delayed in obtaining
that confirmation, until the time at which it was reasonable for him to have
got it. If negative expert advice is obtained, that fact must be considered in
combination with all other relevant facts in deciding when, if ever, the
plaintiff had knowledge. If no inquiries were made, then, if it were reasonable
for such inquiries to have been made, and if the failure to make them is not
explained, constructive knowledge within the terms of section 14(3) must be
considered. If the plaintiff held a firm belief which was of sufficient
certainty to justify the taking of the preliminary steps for proceedings by
obtaining advice about making a claim for compensation, then such belief is
knowledge and the limitation period would begin to run."
33. In Spargo v. North Essex District Health Authority [1997] PIQR P235
the issue was the date when the plaintiff knew that her sufferings were
attributable to a misdiagnosis of organic brain damage. The judgment of the
Court of Appeal was given by Brooke L.J. with whom both Waller L.J. and Nourse
L.J. agreed. At page P242 Brooke L.J. drew the following principles from a
number of authorities including Nash v. Eli Lilley & Co:
" (1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge
of the essence of the causally relevant act or omission to which the injury is
attributable;
(2) "Attributable" in this context means "capable of being attributed to", in
the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it
reasonable for her to begin to investigate whether or not she has a case
against the defendant. Another way of putting this is to say that she will have
such knowledge if she so firmly believes that her condition is capable of being
attributed to an act or omission which she can identify (in broad terms) that
she goes to a solicitor to seek advice about making a claim for
compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks
she knows the acts or omissions she should investigate but in fact is barking
up the wrong tree: or if her knowledge of what the defendant did or did not do
is so vague or general that she cannot fairly be expected to know what she
should investigate; or if her state of mind is such that she thinks her
condition is capable of being attributed to the act or omission alleged to
constitute negligence, but she is not sure about this, and would need to check
with an expert before she could be properly said to know that it was."
He added:
"In order to see whether section 14(1)(b) is satisfied in the present case, it
is first necessary to identify the injury of which the plaintiff had actual
knowledge for the purpose of section 14(1)(a). This was not a case of traumatic
injury or shock-induced psychiatric injury, such as would not give rise to any
particular problems of identification."
34. At P244, Brooke L.J. referred to the view of the judge that:
"It does not seem to me that it is a fair or correct approach to say that
because an individual, for reasons which may be good or may be bad, has a
certainty in his own mind as to the connection, that in itself means that he
has the requisite knowledge if, looked at objectively, it is perfectly plain
that no layman would be able to know (as opposed to believe) that the
connection existed without the assistance of some expert advice."
If transposed from the issue of attribution to the issue of significant injury,
that view seems to me to be much the same as Mr Head's argument in the present
case, but Brooke L.J. said of it, and other passages in the judge's
judgment:
"In my judgment, in all these passages the judge is substituting the much
tougher test of proof of causation for the much less rigorous statutory test of
attributability, in the sense that the identified injury was capable of being
attributed to the identified omission. The test is a subjective one: what did
the plaintiff herself know? It is not an objective one: what would have been
the reasonable layman's state of mind in the absence of expert confirmation?
After all, the policy of Parliament, in these cases which would otherwise be
statute barred, is to give a plaintiff who has the requisite low level of
knowledge, three years in which to establish by inquiry whether the identified
injury was indeed probably caused by the identified omission and whether the
omission (identified initially in broad terms) amounted to actionable
negligence. The judge's approach would be to stop the three years from even
starting to run until a much more advanced stage of the investigation had been
completed."
35. In O'Driscoll v. Dudley Health Authority [1998] Lloyd's Rep.Med.210
the judge of the preliminary issue held that the plaintiff did not have actual
knowledge that her injuries were caused by events at her birth at any time
before seeing her expert's report. Simon Brown L.J. said of the argument of
counsel to the claimant which centred upon a distinction between knowledge and
belief, at pages 221 and 222:
"In my judgment, however, the argument is an impossible one. Not least, as
stated, it demonstrably conflicts with the third Spargo principle: a
firm belief in attributability which takes a plaintiff to a solicitor for
advice is to be regarded as the requisite knowledge. The logic is plain: once
one recognises, as Lord Donaldson pointed out in Halford v. Brookes
[1991 1 WLR 428 ....... that knowledge in this context does not mean knowing
for certain, knowledge and belief inevitably shade into each other. Knowledge
here is, after all, only of the real possibility of causation. I had thought at
one stage of the argument that Mr Lewis's best hope lay in equating the
plaintiff's state of mind with that identified in the fourth Spargo
principle as one not involving the requisite knowledge, namely
" ... if her state of mind is such that she thinks her condition is capable of
being attributed to the act or omission alleged to constitute negligence but
she is not sure about this, and would need to check with an expert before she
could be properly said to know that it was."
The difficulty with this, however, is that it would put the fourth
Spargo principle into conflict with the third. The fourth principle, in
my judgment, must be read as postulating a situation antithetical to that
covered by the third principle; i.e. the fourth principle postulates a state of
mind short of a firm belief which takes a potential claimant to a solicitor.
So as to clarify further the contrast between principles three and four, I
would just add that the reference in principle four to the "need to check with
an expert" is a reference to the need for an expert's opinion before even the
claimant can be said to know that the attributability of her condition to a
particular "act or omission" is a real possibility. (It is in that situation,
of course, that the question of constructive knowledge arises.) That is not the
same investigation as is referred to in the first limb of principle three; this
latter is an investigation into whether the plaintiff "has a case against the
defendant" - what Brooke L.J. later in his judgment called
" ..... enquiry whether the identified injury was indeed probably caused by the
identified omission and whether the omission (identified initially in broad
terms) amounted to an actionable negligence."
an investigation which must be carried out whilst the limitation clock is
ticking."
36. Finally, in Ali v. Courtaulds Textiles Limited [1999] Lloyds
Rep.Med.301, the main preliminary issue was whether the plaintiff knew that his
deafness was attributable to industrial noise, as opposed to age, when he was
told by a community worker that it could have been caused by his work in a
mill, or only when a consultant ENT surgeon later reported that it had probably
been caused by exposure to industrial noise. The judge found that the plaintiff
had the necessary knowledge when he accepted the advice of the community worker
and promptly made an appointment to see solicitors:
"At that time, in my judgment, the plaintiff was clear in his mind of the
connection there was between his condition and his working environment and he
sought advice on whether, and if so how, he could claim compensation."
37. Henry L.J., with whom Holman J. agreed, held that there was a total failure
by the judge to consider the proviso in the last lines of section 14. The
plaintiff did not and could not know whether his deafness had been caused by
ageing or noise; knowledge as to whether deafness was noise-induced or
age-induced was ascertainable only with the help of medical expert advice.; he
had not had such advice when the judge found constructive knowledge against
him, and he had taken prompt and reasonable steps to get that advice.
"So the proviso to section 14(3) applied: he should not be fixed with knowledge
that his deafness was noise-induced because that question was only
ascertainable by him with expert advice, which it was not only reasonable, but
essential he obtained before he did anything else. Here the limitation on his
legal aid certificate reflected what a solicitor dealing with a privately
funded case would have told him: "I cannot tell you whether your deafness is
age-induced or noise-induced. But I can tell you that there is no point your
spending any money until you have ensured that you can call expert medical
evidence to show that it is noise-induced. Without that evidence you will have
no case.
In the analysis above I have used the plain words of the statute. When properly
analysed the authorities, as one would expect, show the same pattern whenever
one is dealing with a situation where expert medical knowledge beyond the scope
of even an informed and intelligent layman is necessary to establish the cause
of the personal injury which founds the action. Clearly what has to be "known"
on the facts of each individual case will determine where the division between
knowledge, belief and suspicion are drawn."
38. At page 305, Henry L.J. said:
"(1) Mr Ali's case is a case where he could only be satisfied that his deafness
was noise-induced after receiving medical advice confirming that;
(2) for the reasons already given, knowledge of the medical cause must be the
first step in the inquiry;
(3) Nash is indistinguishable in that the court here should apply the
proviso to section 14(3) on the basis that "belief should be confirmed by a
doctor, and until that time a plaintiff would not have requisite
knowledge.""
39. Henry L.J. referred to the passages from Nash which I have already
quoted, and continued:
"That is the proviso to section 14(3) in action. The judge should have employed
it, but he did not.
Likewise, this case comes within the third category of principle (4) in Brooke
L.J.'s analysis in Spargo ...... :
(4) .... she will not have the requisite knowledge ... if her state of mind is
such that she thinks her condition is capable of being attributed to the act or
omission alleged to constitute negligence, but she is not sure about this, and
would need to check with an expert before she could be properly said to know
what it was."
40. The judge in the present case relied heavily upon Ali for its
interpretation of Nash. However, the difficulty which I have in applying
Ali to the facts of the present case is that in my view it is the third
principle in Spargo which is particularly relevant to the facts of the
present case, whereas it was the third category of the fourth principle which
was judged to apply to Ali.
41. I must confess that I do not find all that was said in Nash easy to
understand. Not all the principles which were expounded in the judgment in that
case appear to me to be readily reconcilable with each other, particularly when
brought to bear on the circumstances of this case where the claimant continued
to believe that he had an injury which had been caused by conditions at work,
despite repeated expert advice to the contrary. I have come to the conclusion,
however, that for the purposes of the present case the vital effect of what was
said in Nash, Spargo and O'Driscoll is to distinguish
between a claimant who has a firm belief that 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 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. The former has knowledge of significant injury and attribution
for the purposes of section 14; the latter does not. In my view, Mr Sniezek
fell into the former category before the date of knowledge chosen by the
judge.
42. Although the cases to which I have referred related to the question of
knowledge of attributability with its low threshold of a real possibility,
only, of causation, I believe that the essential principle must be the same so
far as knowledge of significant injury is concerned, while interpreting
"significant" injury in accordance with section 14(2).
43. In these circumstances I do not consider that the judge's decision on the
date of knowledge can be sustained. It was not sufficient, to postpone
knowledge, that the claimant recognised the need to get both medical and legal
advice, and that the advice was adverse until January 1994.
44. I can not accept Mr Head's submission that a claimant can not know that he
has an injury or that it is significant, just because medical experts advise
that no injury can be found, which was the situation for so long in the present
case. Whatever may be said about difficulties of attribution, a claimant such
as Mr Sniezek either feels a sore throat, and burning lips, and has
difficulties swallowing, as Mr Sniezek claimed from an early stage, or he does
not. However, I am not persuaded that he had a firm belief that his injury was
significant from 1984. He complained of throat symptoms then, but the judge was
prepared to accept his evidence that he found his condition bearable and that
he did not believe that he was suffering from any permanent injury, in the
early stages. In my view that is consistent with his failure to attend the
first ENT appointment arranged in 1984. The extent of his complaints between
1984 and 1987 is unclear to me, but by 1988 he was complaining of severe
symptoms. He went to see his GP, complaining of his symptoms in April 1989, by
which time he had suffered from throat symptoms for five years and they had
continued for a year since he had stopped working in dusty conditions. He had
always attributed his throat symptoms to his work alone, and I would fix his
firm belief amounting to knowledge of significant injury, combined with the
pre-existing knowledge of attribution of throat symptoms, at April 1989.
45. I do not consider that the claimant can be faulted for not doing more than
he did to identify his injury and its cause before that date, for the purposes
of section 14(3)(b).
46. It may seem hard that time should run for the purposes of the Limitation
Act when a claimant has taken reasonable steps to obtain medical or other
expert advice to confirm his own belief in an injury, or its attribution, and
the advice obtained has proved negative until he is well outside the primary
period of limitation; but the three year period will be sufficient in most
cases to obtain the necessary positive advice if a claim is good, and in hard
cases where a claim is in fact good, and a claimant acts reasonably, but for
one reason or another the advice is negative, the remedy lies in section 33 of
the Act.
47. Mr Vincent's challenge to the exercise of the court's discretion under
section 33 was based on the assumption that the true date of "knowledge" for
the purpose of section 14 was 1984 so that the delay for the purposes of
section 33 was from 1987 to 1998, but I will assume that the basis of his
challenge would be the same if, as I believe, the delay was from 1992 (three
years after 1989) to 1998. There were three elements to his challenge: first,
that the claimant had failed to act promptly to obtain the medical and other
expert advice necessary to advance his claim; second, that the defendants had
been prejudiced in their defence of the claim, by the passage of time; and,
third, that the claim was weak and of little value and presented by a legally
aided litigant, so the the irrecoverable cost of defending it was out of all
proportion to its worth.
48. In my view, however, as I have already indicated, the claimant made
reasonable efforts to seek medical and other advice from the time when he
associated throat symptoms of any severity and apparent permanence with his
working conditions. He went to see his GP in 1989 and attended the hospital
appointments which were thereafter arranged. Despite negative medical advice he
went to see experienced personal injury litigation solicitors a year later in
1990. Thereafter the failure to commence proceedings was caused by an inability
to obtain the positive medical and other expert evidence which any sensible
legal aid authority or solicitor or counsel would require for that purpose,
compounded in 1996 and 1997 by the defendants' resistance to disclosure of the
presence in their coating powder of TMA which, as paragraph 2 of the Defence
now admits, was known by them to be a potential sensitiser.
49. The allegation of prejudice by delay was based on evidence from the
defendants' solicitor that in 1993 the defendants had disposed of the premises
where the claimant had worked and that they have since been demolished.
Moreover, the solicitor has only been able to trace one further director or
fellow employee, and he has no detailed knowledge of the plaintiff's work. The
solicitor has not been able to trace Mr Gazely. However, I find in difficult to
see how the layout of the workplace will prove significant on the issue of
liability and there is no evidence of the extent of the steps taken to find
witnesses. The case is likely, in my view, to revolve around expert evidence as
to the condition of the claimant and the effect of inhaling dust containing TMA
and chromium.
50. Nor can I accept that the claim appears weak or of little value. It is
true, as Mr Vincent pointed out, that even now the claimant lacks a medical
report identifying a condition probably caused by inhaling TMA or chromium, and
that most of his special damages may be attributable to factors other than his
throat symptoms. But the acknowledged presence of an admitted sensitiser in the
claimant's working environment for a period of four years in my view provides a
strong apparent case on liability, and general damages for sixteen years of
discomfort so far, consistent with sensitisation, will not be insignificant if
the claim succeeds, quite apart from an uncertain prognosis. The existence of
legal aid can not be material, in my view.
51. In my view it is equitable to direct that what would otherwise be the harsh
provisions of sections 11 and 14 of the Act, in the circumstances of this case,
should not apply to the claim.
52. For all these reasons, while disagreeing with the judge's view of the date
of knowledge, I too would allow the claim to proceed, and I would dismiss this
appeal.
LORD JUSTICE JUDGE:
I agree, and add a judgment of my own in deference to the substantial
citation of authority by counsel.
I shall not repeat the facts or the statutory provisions set out in Bell J's
judgment.
"No one doubts that knowledge is an ordinary English word with a clear
meaning" (per May LJ in Davis v Ministry of Defence, unreported, 26th
July 1985). Yet in the context of ss11 and 14 of the Limitation Act 1980 this
simple word has been the cause of much debate and some controversy.
S11(4)(b) and s14 of the 1980 Act, together with s33, represent the latest in a
series of statutory provisions designed to alleviate the stark injustice of the
Limitation Act 1939, described by Lord Reid in Cartledge v Jopling
[1963] AC 758.
"..... a cause of action accrues as soon as a wrongful act has caused personal
injury beyond what can be regarded as negligible, even when that injury is
unknown to and cannot be discovered by the sufferer; and that further injury
arising from the same act at a later date does not give rise to a further cause
of action. It appears to me to be unreasonable and unjustifiable in principle
that a cause of action should be held to accrue before it is possible to
discover any injury and therefore before it is possible to raise any
action."
The subsequent reforms did not eradicate limitation periods in personal injury
actions, but rather provided that a limitation defence would no longer succeed
if the claimant, ignorant of the fact that a cause of action had accrued to
him, fails to bring an action within three years of its accrual. The running
of time is postponed until, but not beyond, the injured person's "date of
knowledge". Thereafter he has three years in which to begin proceedings, in
the vast majority of cases a generous enough period to make any necessary
enquiries before deciding whether to pursue the claim. The purpose of the
legislation is to avoid the injustice identified by Lord Reid, not to do away
with limitation periods altogether.
Rather than provide any interpretation of the word "knowledge", s14 defines the
date of knowledge for the purposes of s11 (and s12) and identifies the
material matters of knowledge which arise for consideration. More particularly
ss14(1)(a), 14(1)(A)(a), 14(2) and 14(3) are concerned with the date of
knowledge in relation to the significance of the "injury in question", while
ss14(1)(b), 14(1A)(b) and 14(3) relate to knowledge that the injury "was
attributable "as a matter of fact, not law, to the act or omission of the
potential defendant. The significant feature of s14(3) is that it introduces
into what is normally regarded as the entirely subjective concept of an
individual's personal knowledge - what he knew - the principle of
constructive knowledge - whether he knew it or not, what he might reasonably
have been expected to acquire or deduce from particular facts (McCafferty v
Metropolitan Police District Receiver [1977] 1 WLR 1073). Conclusions
about an individual's state of knowledge, like any other relevant state of
mind, normally depend on inferences drawn from the relevant surrounding
circumstances. The combination of objective elements for consideration in
relation to constructive knowledge with subjective questions about an
individual's state of mind, together with the absence of any statutory guidance
about the requisite degree of knowledge, has given rise to some of the
difficulties which would not normally attend the elucidation of an "ordinary
English word".
Mr Sniezek was found by Judge Ansell strongly to have believed from the start,
that his throat problems were attributable to conditions at work. Naturally
his clear evidence in cross examination was relied on by Mr Vincent, but, in
the result, his answers were given a somewhat limited interpretation by the
judge.
He said
"he may have had a belief from the start, but that was not knowledge for the
purposes of the Act. Indeed, there is clear evidence in this case that,
notwithstanding what one might even term as strong belief on his part, he
recognised the need to get both medical and legal advice, which he did on a
number of occasions, consulting two sets of solicitors and I think going to
specialists on four or five occasions. "
This conclusion depended in part on recognition that the claimant was not
absolutely precise in his use of English, which was not his native tongue, and
the judge's insight into the fact that after many years in which his belief had
been dismissed by a series of professional experts, virtually anyone who has
ultimately been vindicated, or believes himself to have been vindicated, would
be inclined to assert that he had been right all along, and therefore to have
"known" what the medical experts had taken years to confirm.
However, beyond recording it, the judge did not deal specifically with the fact
that Mr Sneizek had sought assistance from Union solicitors, Robin Thomson and
Partners, who had referred him to and sought the advice of Dr Rudd, a well
known physician. Dr Rudd reported that there was "no evidence to support the
view that any of his symptoms are attributable to his work". Naturally enough
his solicitors did not pursue any claim or make any further investigations. It
may seem stark in such circumstances to conclude that Mr Sniezek could
nevertheless be fixed with the requisite knowledge no later than the date when
he consulted the solicitors, but Mr Vincent submitted that this was the effect
of the authorities.
His contention was wholly inconsistent with the decision In Davis v Ministry
of Defence, 26th July 1985, unreported, when, following the grant of legal
aid, solicitors acting for the plaintiff issued a writ against the defendant in
October 1973. Eventually it lapsed. In November 1981 a new writ, endorsed in
identical terms to the original writ, was issued. This claim was struck out.
Basing its decision on the relevant provisions of the 1980 Act, the Court of
Appeal allowed the appeal and permitted the action to proceed. Plainly the
fact that the plaintiff had already consulted solicitors was not regarded as
fatal to the second claim. Arguably the limitation defence might not succeed.
An early indication of judicial concern about this decision was the comment by
Lord Donaldson MR in Halford v Brooks [1991] 1 WLR 428 that the facts
were "highly unusual", and his subsequent observations:
"The word (knowledge) has to be construed in the context of the purpose of the
section, which is to determine a period of time within which a plaintiff can be
required to start any proceedings. In this context "knowledge" clearly does
not mean "know for certain and beyond possibility of contradiction". It does,
however, mean "know with sufficient confidence to justify embarking on the
preliminaries to the issue of a writ, such as submitting a claim to the
proposed defendant, taking legal and other advice, and collecting evidence".
Suspicion, particularly if it is vague and unsupported, will indeed not be
enough, but reasonable belief will normally suffice. It is probably only in an
exceptional case such as Davis v Ministry of Defence that it will not,
because there is some other countervailing factor." (p443)
Both when identifying the necessary degree of knowledge, that is, "sufficient
confidence to justify embarking on the preliminaries to the issue of a writ",
and when illustrating the circumstances in which the inference of such
knowledge would be drawn, that is, "submitting a claim to the proposed
defendant", Lord Donaldson began the dilution of authority from Davis.
Significantly, he did not suggest that seeking advice from a solicitor was
conclusive, nor that, on its own, it should be treated as representing a
sufficient preliminary to the issue of a writ so as to lead to the inescapable
inference of the requisite degree of knowledge. In effect, the argument
advanced by Mr Vincent depends on treating Lord Donaldson's observations as
encapsulating a principle of law definitive both of the relevant degree of
knowledge sufficient for time to run (which, as his words, "It does, however,
mean ......" demonstrate, they were) and of circumstances in which the
inference of such knowledge would inevitably be drawn (which, as his
introductory words, "such as" show, they were not). In my judgment the
distinction is crucial, and has not been undermined by subsequent decisions.
In Nash v Eli Lilly & Co [1993] 1 WLR 782, Davis was
distinguished on the basis that it was concerned with a strike out. It was not
expressly over-ruled, but the court found itself unable to derive a "great deal
of assistance from it".
"The decision does, however, appear to regard as arguable the contention that,
if a claimant is shown to have had knowledge, as we understand the meaning of
that word in this context, that his injury is attributable to act or omission
of the defendant, the subsequent obtaining of expert advice for the purpose of
legal proceedings which said that the injury is not so attributable, could
retrospectively cause him never to have had such knowledge. We do not accept
that that contention is arguable. It seems to us to be in conflict with the
words of the statute .... We add that we have difficulty in perceiving how in
any case where a claimant has sought advice and taken proceedings, it can
rightly be held that the claimant had not then had relevant knowledge."
(per Purchas LJ at p 795/796)
The last conclusion is hardly surprising. If a plaintiff has taken
proceedings, save in the most exceptional factual circumstances, it is
difficult to see how he should in a subsequent action benefit from the
relaxation of the relevant limitation provisions when he has allowed the first
proceedings to lapse. Compelling evidence would be needed to avoid the
conclusion that such a plaintiff must indeed have had the requisite degree of
knowledge, that is, "sufficient confidence to justify embarking on the
preliminaries to the issue of a writ". Accordingly, on the point currently
under consideration, any remaining substance of authority was drained from
Davis.
Having analysed the principles, the court in Nash explained the
conclusions which would guide it. These included
"5. It is to be noted that a firm belief held by the plaintiff that his injury
was attributable to the act or omission of the defendant, but in respect of
which he thought it necessary to obtain reassurance or confirmation from
experts, medical or legal, or others, would not be regarded as knowledge until
the results of his enquiries was known to him ...... If negative expert advice
is obtained, that fact must be considered in combination with all other
relevant facts in deciding when, if ever, the plaintiff had knowledge..... If
the plaintiff held a firm belief which was of sufficient certainty to justify
the taking of the preliminary steps for proceedings by obtaining advice about
making a claim for compensation, then such belief is knowledge and the
limitation period would begin to run."
Mr Vincent argued that the present case fell precisely within the terms of the
last sentence, in which Purchas LJ was plainly echoing Lord Donaldson's
observation in Halford. During the course of the argument I had
difficulty in reconciling the first and last parts of this passage. In context
I take the reference to "negative expert advice" to include a reference to
legal as well as medical advice. So if negative legal or medical advice is
received by a plaintiff who firmly believes "that his injury was attributable
to the act or omission of the defendant", this belief is not "knowledge" for
the purposes of ss11 and 14 if his state of mind is such that he thinks it
necessary to obtain "reassurance" or "confirmation", yet if he seeks legal
advice when his belief is already sufficiently certain to "justify the taking
of the preliminary steps for proceedings by obtaining advice", inevitably in
this context, legal advice, it is. The distinction between "advice" about
making a claim for compensation, and "reassurance or confirmation" from a legal
adviser is difficult to draw at the best of times, and bearing in mind that the
investigation would ultimately involve examining questions about legal advice
sought by the claimant some years earlier, difficult to ascertain with any
comforting sense of precision. However the difficulties disappear if, as with
Lord Donaldson's observations, this guidance is recognised for what it is, and
was asserted to be, guidance about the issue of fact which arises when the
plaintiff has sought legal advice -did he, or did he not, have the required
degree of knowledge?
As the first and second sentences demonstrate, this decision is not authority
for the proposition that time automatically starts to run against a claimant
who has taken legal advice. Indeed nothing in the Act suggests that any
special consequences must or should be deemed to arise from his doing so, a
feature lent particular emphasis by the enactment of express provisions
relating to constructive knowledge.
Faced with guidance which appeared to produce a definite set of legal
principles about the inferences which should follow in circumstances when the
claimant had taken legal advice about a possible claim, subsequent decisions
loyally sought to apply the guidance as increasingly refined arguments were
deployed to demonstrate that an individual case fell on one side or the other
of the relevant line.
In Spargo v North Essex District Health Authority [1997] PIQR 235 the
crucial fact was that "the judge found that the plaintiff was clear in her mind
that the connection was there between the misdiagnosis and what she had
suffered when she came to her solicitor for advice on whether and if so how she
could claim compensation for what she had suffered". That finding of fact was
conclusive. The plaintiff was seeking legal advice about the method, the
means, the steps required to start her claim: so she knew all that was
necessary for her to know for time to start running.
In his judgment Brooke LJ derived two relevant principles from the authorities.
"(3) A plaintiff has the requisite knowledge when she knows enough to make it
reasonable for her to begin to investigate whether or not she has a case
against the defendant. Another way of putting this is to say that she will
have such knowledge if she so firmly believes that her condition is capable of
being attributed to an act or omission which she can identify (in broad terms)
that she goes to a solicitor to seek advice about making a claim for
compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks
she knows the acts or omissions she should investigate but in fact is barking
up the wrong tree: or if her knowledge of what the defendant did or did not do
is so vague or general that she cannot fairly be expected to know what she
should investigate; or if her state of mind is such that she thinks her
condition is capable of being attributed to the act or omission alleged to
constitute negligence, but she is not sure about this, and would need to check
with an expert before she could be properly said to know what it was."
As Brooke LJ made clear, he was not seeking to develop this area of the law,
but rather, after an analysis of the authorities, attempting to summarise it.
Applying his observations to the present case, Mr Head graphically suggested
that the result of the visit by the claimant to his solicitors was, contrary to
his own belief, that there was no tree to bark up. That led to the unjust
conclusion that time was running notwithstanding the wholly adverse, but in
the light of the medical response, sensible advice of his solicitors.
Attractively put as it was, it does not seem to me that Mr Head was right. In
each case the single question remains the individual's state of knowledge of
the relevant matters, rather than his adviser's opinion about the prospects of
success in legal proceedings. Once time starts to run, it is not postponed
even if the plaintiff sensibly thinks, on the basis of legal and medical
advice, that he should not proceed to litigation. When all is said and done
that is not an end of the matter: under s33 the court is enabled to consider
whether the limitation period should be disapplied notwithstanding the lapse of
time. This conclusion follows from the wording of the statute, and was
demonstrated in the passage in the judgment of Purchas LJ in Nash at
p793,
"Mr Playford submitted that once it had been established that the plaintiff had
knowledge, actual or constructive, then the period of limitations started to
run and that nothing that occurred thereafter would interrupt that process.
S14 of the Act, he submitted, contained no provision for suspension or
termination of this process. S33, he submitted, had been included to deal with
exceptional or hard cases. Mr Brennan did not argue to the contrary, nor could
he do so in view of the presence of the word "first" in s14."
In O'Driscoll v Dudley Health Authority [1998] LLRM 210 the Court of
Appeal reluctantly felt compelled to allow the defendant's appeal against the
decision that the plaintiff's claim was not time-barred. The plaintiff's
problem was simply expressed. From the age of 15 years she had sufficient
knowledge for the purposes of the Act. This meant that when she attained her
majority, time began to run against her, unfortunately that occurred on her
eighteenth birthday, and was not, as she and her family believed, postponed
until she was 21. On her 21st birthday a letter before action was written in
which the "father merely recorded in writing what his daughter already knew.
She had sufficient information to justify embarking with confidence on the
preliminaries to the issue of the writ by intimating a claim to the proposed
defendant before taking legal or other advice". (per Otton LJ at p216) Again,
although desperately sad, the result appears to have been inevitable.
Dealing with Brooke LJ's analysis in Spargo, Simon Brown LJ pointed out
that the fourth principle should not be treated as contradicting the third. He
said that it
"must be read as postulating a situation antithetical to that covered by the
third principle; ie the fourth principle postulates a state of mind short of a
firm belief which takes a potential claimant to a solicitor. So as to clarify
further the contrast between principles three and four, I would just add that
the reference in principle four to the `need to check with an expert' is a
reference to the need for an expert opinion before even the claimant can be
said to know that the attributability of her condition to a particular `act or
omission' is a real possibility..... That is not the same investigation as is
referred to in the first limb of principle three; this latter is an
investigation into whether the plaintiff `has a case against the defendant'
..... an investigation which must be carried out whilst the limitation clock is
ticking."
The application of s33 was not, and for the reasons given in the judgment could
not be, considered by the court: so we cannot know what its response would have
been.
The final authority for consideration is Ali v Courtaulds Textiles
Limited [1999] Lloyds MR 301. The plaintiff suffered from deafness. He
did not and could not know, one way or another, whether his deafness was caused
by the natural ageing process or exposure to industrial noise. That was a
medical question. So he obtained medical advice, not by approaching a doctor
directly, but by seeking advice from a solicitor who sent him to a doctor for
examination and report about the cause of his deafness. The judge found "that
the mere fact of seeking that advice (which necessarily had to be medical)
fixed him with knowledge". (per Henry LJ at p304)
On analysis of the statutory language, that conclusion was rejected. The judge
had failed to give proper weight to the provisions in s14(3), and wrongly
inferred knowledge from the fact that the plaintiff had sought medical advice
about the cause of his deafness through the medium of a solicitor.
On the facts ascertainable from the report, I agree with Henry LJ that the
necessary degree of knowledge was not established. If Mr Ali did not know
whether his deafness resulted from exposure to noise at work, or the natural
ageing process, I find it difficult to see how he could be fixed with the
necessary degree of knowledge that he had suffered an injury which was
attributable to the act or omission of the defendants. He needed to "check"
with, or obtain "reassurance or confirmation" from a medical expert. If Mr Ali
had gone directly to a consultant, rather than through a solicitor acting as an
intermediary, I do not believe that the requisite degree of knowledge would
have been established. Equally, if the medical advice he had received when he
did so had attributed his condition to the ageing process he would not, in my
judgment, have been fixed with knowledge merely because he had serious trouble
with his hearing and sought advice about its cause.
Having considered the authorities cited to us, I have reminded myself that in
Dobbie v Medway Health Authority [1994] 1 WLR 1235 at 1240, when Sir
Thomas Bingham MR was reflecting on the statutory provisions currently under
consideration, he said:
"This test is not in my judgment hard to apply. It involves ascertaining the
personal injury on which the claim is founded and asking when the claimant knew
of it. In the case of an insidious disease or delayed result of a surgical
mishap, this knowledge may come well after the suffering of the disease or the
performance of the surgery. But more usually the claimant knows that he has
suffered personal injury as soon or almost as soon as he does so."
In short, the question is one of fact in each case. I doubt whether any
considerable legal refinement is normally necessary or appropriate. What I
believe has made for unnecessary complication is that the fact finding process
has too often been treated as if it were a question of law. If a proposed
claimant seeks legal advice, this may well lead to the inference that he was
possessed of the necessary degree of knowledge when he did so. As to
significant injury, the very fact that legal advice was sought would normally
suggest that he thought that the injury was "significant" (otherwise why seek
legal advice at all?). However the inference that the claimant sufficiently
knew that the injury was attributable to the acts or omissions of an identified
defendant does not inexorably follow from the fact that he sought legal
advice.
If I may say so, where the point is contentious and inadequately covered by
appropriate affidavit evidence which means that, as in this case, it is thought
appropriate that the claimant should give oral evidence, or where the affidavit
evidence is sufficient, five or ten minutes of argument focused upon the facts
will enable the judge to make up his mind much more quickly than a prolonged
trawl through the authorities. This will also avoid the danger that a question
of fact might wrongly be treated as a issue of law, and, what is more, would
probably produce a truer result, more certainly reflecting the realities of the
individual case, and the date when time indeed started to run.
On the facts here, I agree with the conclusion reached by Bell J that time
started to run rather earlier than the judge found. I also agree that for the
reasons he has given, it would be equitable to disapply the limitation
provisions. In the particular circumstances of this case, the critical factor
which has led me to this conclusion is the injustice which would follow if,
given the history, the claimant, who had done his best to obtain appropriate
medical and legal advice, were now to be deprived of his opportunity to bring
proceedings. I can find no significant countervailing prejudice to the
defendants.
I therefore agree that this appeal should be dismissed.
LORD JUSTICE SIMON BROWN:
1. I agree with my Lords as to how s.14 and s.33 should properly be applied on
the particular facts of this case and am tempted to say no more. Since,
however, I made certain remarks in O'Driscoll v Dudley Health Authority
[1998] LLRM 210 in the hope of illuminating the principles laid down in
Spargo v North Essex District Health Authority [1997] PIQR P235 which,
as I now think, might more usefully have been directed towards the series of
conclusions earlier reached in the leading case of Nash v Eli Lilly &
Co. [1993] 1 WLR 782, and since I am not entirely in agreement with Judge
LJ as to whether the later case of Ali v Courtaulds Textiles Limited
[1999] LRM 301 was decided consistently with those principles, I have felt
bound to add a short judgment of my own.
2. Generally, when someone is injured, he knows then and there whether his
injury is significant; he knows broadly how he has come to be injured; and he
knows who has injured him. Such a person, however strong or weak he may
suppose his case to be, is given three years to sue, an ample time in which to
seek advice, submit his claim, gather his evidence, and take such other steps
as are ordinarily taken before the issue of proceedings.
3. Sometimes, however, when an injury occurs, the person injured does not know
at the time that it is significant (it may be latent or insidious or at the
outset appear trifling); or he does not know that it is capable of being
attributed to whatever act or omission is ultimately alleged blameworthy (he
may have become deaf and have no notion that this may be attributable to his
conditions of work); or he does not know who is responsible for the relevant
act or omission. In such a case the commencement of the three year period is
postponed until all those facts are known, either actually known or (see
s.14(3) of the Limitation Act 1980) constructively known.
4. All, therefore, that the court has to do in a case like the present which
concerns the date of actual knowledge is to investigate when first the claimant
knew the relevant facts - the dispute generally being about knowledge of the
fact of attributability. Why, one is tempted to ask, does that so often prove
so difficult and why is the question so encrusted with (not always easily
reconcilable) authority?
5. The answer appears to be because of the difficulty in this context of
deciding just what is meant by knowledge and, more particularly, knowledge of
attributability. Each of my Lords has already cited at some length from the
court's judgment in Nash v Eli Lilly and I need not repeat those
passages. Clearly that judgment (reserved after a lengthy hearing) was
composed with some care and yet, in common with Bell J, I find some difficulty
with it and in particular in reconciling the first and last sentences of
paragraph 5 of the court's conclusions at page 796. Before turning to that,
however, I would like to contrast the first sentence of paragraph 5 (included
in paragraph 32 of Bell J's judgment) with an earlier passage in the court's
judgment at page 795 (included in paragraph 31 of Bell J's judgment). It
seems to me likely that the court was seeking to reflect this earlier passage
when it came to the first sentence of paragraph 5 of the subsequent summary.
And yet, when one reaches paragraph 5, what previously had been merely a
"belief" has become "a firm belief", and the earlier "expert confirmation" has
become "reassurance or confirmation from experts, medical or legal, or others".
6. Now it seems to me one thing to say that a mere believer in attributability
who "realises that his belief requires expert confirmation" does not have
knowledge of that attributability; arguably another to say that a firm
believer who, for example, nevertheless wants legal advice (say to reassure him
that he has reasonable prospects of success) is not to be regarded as having
the requisite knowledge. Why should not time have started running in the case
of the latter? Why should he be entitled to his solicitor's reassurance
before the three year limitation period even begins? I do not think that he is
and nor do I think that the court in Nash v Eli Lilly were intending to
suggest otherwise: and that surely is evident from the final sentence of
paragraph 5.
7. In short, it seems to me that the real contrast being struck in Nash v
Eli Lilly is between on the one hand the mere believer whose situation is
described in the first passage in the judgment, and on the other hand the firm
believer sufficiently certain of his case to have clearly in mind (although
always, of course, subject to the taking of appropriate advice and the
preparation of evidence) the making of a compensation claim. Naturally I
recognise that the decision as to which of those two basic categories fits any
particular claimant will not always be an easy one. Obtaining expert
confirmation of one's belief is not perhaps obviously different from the taking
of preliminary steps for the institution of proceedings. But we have in
addition to the two basic categories described in Nash v Eli Lilly the
court's guidance there that "whether a claimant has knowledge depends both upon
the information he has received and upon what he makes of it" - although it
should be borne in mind that if he makes manifestly too little of it and fails
on that account to take advice he may well be found fixed with constructive
knowledge.
8. Having regard to these considerations and having regard too to the
underlying purpose of this legislation - to postpone the three year period
allowed for the investigation and institution of a specified claim until the
claimant knows enough to make it reasonable to set time running - I find it
difficult indeed to imagine a case where, having consulted a solicitor with a
view to making a claim for compensation, a claimant could still then be held
lacking in the requisite knowledge.
9. In short, I adhere to what I said in O'Driscoll and in the result
confess to some difficulty both with the reasoning and, I have to say, with the
result in the subsequent case of Ali. True it is that when Mr Ali went
to his solicitor he knew only that his deafness might have been caused
by his conditions of work in the cotton mill rather than (as he had earlier
assumed) by a natural ageing process. But that seems to me sufficient
knowledge of attributability given, as stated in the second of the
Spargo principles, that in this context a real possibility of
establishing causation constitutes attributability. As Brooke LJ explained,
the exploration of whether the injury (in Mr Ali's case his deafness) "was
indeed probably caused" by the relevant act or omission (in Mr Ali's case his
conditions of work) was something appropriately to be done within, not before,
the three year period of limitation. Mr Ali, therefore, seems to me to have
come strictly within the second category outlined in Nash v Eli Lilly;
he was someone "obtaining advice about making a claim for compensation"; he
had, indeed, already obtained a legal aid certificate for the purpose, albeit
one initially limited to obtaining the necessary ENT report.
10. My difficulty with the reasoning in Ali is twofold. In the first
place the judgment appears to proceed on the footing that Mr Ali had to know
that his deafness actually "was" noise-induced, rather merely than that this
was a real possibility, before he could be said to have had actual knowledge of
the fact of attributability. Secondly, I am troubled by the reliance placed
in the judgment on the proviso to s.14(3). To my mind that subsection
provides no assistance in determining whether a claimant can be said to have
actual knowledge of the material facts. This question is to be determined
solely by reference to s.14(1) and (2). The proviso to subsection (3)
precludes only a finding of knowledge "under this subsection", i.e. a finding
of constructive knowledge. Mr Ali, as it seems to me, should have been found
to have actual rather than (as apparently the assistant recorder found)
constructive knowledge when he consulted his solicitor.
11. For obvious reasons, I make these points here with some diffidence given
that they do not affect the outcome of this appeal and that there are already
perhaps too many judgments seeking to analyse the effect of these provisions.
It really does seem to me important, however, that s.14 should not be applied
to delay the start of the limitation period for longer than a want of knowledge
makes fair and necessary. Hard cases like the present can always be catered
to under s.33.
Order: Appeal dismissed with Costs. Leave to Appeal Refused.
(Order does not form part of approved judgment.)
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