B3/2005/2259
Neutral Citation Number: [2006] EWCA Civ 1630
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DONCASTER COUNTY COURT
(MRS RECORDER STOCKEN)
 
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 13th November 2006
 
B E F O R E:
LORD JUSTICE CHADWICK
LORD JUSTICE TUCKEY
LORD JUSTICE LEVESON

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CLAIMANT/APPELLANT
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DEFENDANT/RESPONDENT
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MR I SKELT (instructed by Messrs Beresfords LLP) appeared on behalf of the Appellant.

MR E LEGARD (instructed by Messrs Whitfield Hallam Goodall) appeared on behalf of the Respondent.
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J U D G M E N T 
1.	LORD JUSTICE TUCKEY: This is an appeal against a decision of Mrs Recorder Stocken made in the Sheffield County Court in which on the trial of a preliminary issue she held that the claimant’s claim for personal injuries was time barred.  Longmore LJ granted permission to appeal because he thought the appeal raised respectable arguments about the incidence of the burden of proof of the ingredients of constructive knowledge for the purposes of section 14 of the Limitation Act 1980.  

2.	The claimant was employed by the defendants and their predecessors at various steel works in South Yorkshire between 1966 and his retirement in 1998 at the age of 55.  He worked first as a dismantler, then as an examiner and de‑seamer, and finally as a finisher.  From 1968 to 1998 these jobs involved working with tools which he alleged exposed him to excessive hand‑transmitted vibration so as to cause Hand Arm Vibration Syndrome (HAVS), colloquially known as Vibration White Finger.

3.	His claim for damages, worth £5-10,000, alleged negligence and breach of statutory duty against the defendants.  It was issued on 10 September 2004.  It was common ground that his cause of action accrued in about 1992, so the claim was statute barred unless the claimant’s “date of knowledge” was less than three years before the date of issue (see section 11 of the Limitation Act 1980).  

4.	Section 14 of the Act so far as relevant says that:

(i)… in section 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 knowledge that any acts or omissions did or did not, as a matter of law, involved 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 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, act on) that advice.

5.	The claimant gave evidence at the hearing of the preliminary issue.  The Recorder accepted his evidence which she summarised as follows:

“[His symptoms] started around 1992 when he had been using a heavy grinder, he had the tingling, it tended to calm down afterwards and when he left the billets alone and got showered and went home, it got better.  The numbness and tingling happened initially and the coldness came on later.  It came on worse when he was using the tools.  However he got on with his job every day, he did not think about it at the time, it was not comfortable but it did not stop him doing what he wanted to do and unusually in this case there was no progression in his symptoms over the years, he had the tingling and numbness apparently even when he was at home.  Because he was able to do what he wanted to, he did not go to his doctor about it specifically and significantly he was a regular visitor to his doctor for other matters.  He had never been told that his symptoms amounted to a known disease [and I add  that he said that he had not received any training or warnings about HAVS].

In 2003, he had a discussion with his brother‑in‑law who had suffered similar symptoms and seemingly had successfully made a claim against his employers.  He was advised to make a claim, he saw an advertisement and contacted [solicitors].  His actual knowledge came then in 2003 confirmed by medical diagnosis in February 2004.”  

That was the first diagnosis of HAVS made by Dr Lambert a consultant rheumatologist. In the opinion which appears at the end of his report, Dr Lambert said:

“[The claimant] describes significant vibration exposure…He does not describe any whitening of his fingers and there is nothing to suggest the vascular component of hand arm vibration syndrome.  He does describe numbness and tingling in his digits but this is not associated with any loss of use…The tingling and numbness may be purely constitutional but in view of his vibration exposure there is a strong probability that they are the sensorineural component of hand arm vibration syndrome, at which he would grade on the Stockholm sensorineural scale as 1 SN right and left.”

That is the least serious on this scale.  

6.	So the Recorder found actual knowledge in 2003.  It was, and is, the claimant’s contention through Mr Skelt then as now that this was also the date of his constructive knowledge.  Before resolving this issue the Recorder reminded herself of what Lord Hoffman said in the leading case on constructive knowledge, Adams v Bracknell Forest Borough Council [2005] 1 AC 76.  In that case the claimant was dyslexic but did not realise this until he was 27, although he had suffered from its effects since childhood.  He sued his Local Education Authority for failing to recognise and treat his dyslexia whilst he was at school.  He only realised he might be dyslexic after he met an educational psychologist at a party.  After considering earlier legislation and authorities at paragraph 47 of his speech Lord Hoffman said:

“It is true that the plaintiff must be assumed to be a person who has suffered the injury in question and not some other person but I do not see how this particular character or intelligence can be relevant.  In my opinion section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate.”

7.	Applying this test to the facts of our case the Recorder said:

“It clearly was a significant injury in 2003 because he went to see a solicitor.  His condition had remained static over the years; he had the same permanent tingling and numbness.  If anything, his condition may even have improved as in the last year of working, and that is 1998, he was primarily a crane driver although he said he did two or three overtime shifts doing other work.  He knew that his injury was attributable to the exposure to the tools because it came on worse when he had been using them, it calmed down after he had gone home.  

“It is purely speculative it seems to me to say that if at that stage the claimant had seen a doctor, there would not have been a correct diagnosis.  The disease was well known in the industry from 1976 and in this particular area of the country a large proportion of the working population was engaged in heavy industry using these types of tools.  Doctors would be likely to see it more here than in other areas.  By the 1990s it was a well known disease and it is unlikely that a doctor would dismiss symptoms without at least taking specialist advice.”

She concluded:

“I am satisfied that applying that mainly objective test, the claimant had constructive knowledge, certainly by 1997 and probably from as early as 1992 or 1993.”

8.	The Recorder went on to consider whether she should nevertheless allow the claim to proceed under section 33 of the 1980 Act and decided that she should not.  The claimant was only given permission to argue in this court that she was wrong about section 33 if we concluded that there was constructive knowledge but at a date later than 1997.  We did not hear argument about this because there was no basis for any such conclusion.  Either the claimant is right and the date of actual and constructive knowledge are the same, in which case the claim was brought within the time limit prescribed by section 11, or the judge was right.  

9.	Mr Skelt first submits that the Recorder was wrong because the claimant could not reasonably be expected to be aware that he had suffered a significant injury, and so no question arose of his going to see a solicitor and/or that he could not reasonably be expected to have known that his injury was attributable to exposure to excessive hand transmitted vibration.  In support of these submissions Mr Skelt relies on the low‑level of the claimant’s symptoms with no vascular (white finger) damage, which had not impacted on his lifestyle or being worthy of mention to his GP, and on his lack of training or warning about the risks of HAVS.  

10.	The difficulty about these submissions is that it had to be conceded that in 2003 the claimant’s injury was significant in the sense defined by section 14(2), that is to say “sufficiently serious to justify instituting proceedings for damages against a defendant, who did not dispute liability and was able to satisfy a judgment”.  On the evidence however the injury was no more significant in 2003 than it had been when the condition first became established in 1992 or 1993.  If it was significant in 2003, it had always been significant since that earlier time.  The claimant’s conversation with his brother‑in‑law had not altered the position.  Nor had it altered any question of attributability.  As the judge recorded: “He knew that his injury was attributable to the exposure of tools because it came on worse when he has been using them, it calmed down after he had gone home.”  All that the brother‑in‑law had done was to provide the missing link that the injury might give rise to a claim for negligence, but knowledge of such a link is irrelevant as section 14(1) of the Act makes clear.  

11.	For these reasons I think that the Recorder was right to conclude that the objective criteria necessary to establish constructive knowledge at some time before 2003 were met in this case.  The claimant should reasonably have been aware that he had suffered a personal injury serious enough to go and see a solicitor and been sufficiently curious about its causes to seek whatever advice was appropriate.  But that is not the end of the matter in this case because Mr Skelt submits that if such advice, in this case medical advice, had been sought in 1997 or before, it was for the defendant to establish that a diagnosis of HAVS would have been made and they have not done so.  It was not open to the Recorder to take judicial notice of the fact that such a diagnosis would have been made.  The defendants had put causation in issue and a party who contests a fact cannot then ask a judge to take judicial notice of it.  The assumptions which the Recorder made were, Mr Skelt submits, not matters of general or common knowledge but speculation about matters of special medical expertise.  

12.	The defendants’ solicitor had put in a statement which had said:

“I would submit that the body of evidence available at the time to general practitioners would lead to a diagnosis of HAVS.  If the claimant had undertaken minimal investigations as to his symptoms a claim could have been pursued at a much earlier stage.”

Before the solicitor gave evidence, there was a discussion with the judge in which it was apparently agreed that this passage was expert evidence which the solicitor was not qualified to give.  It might have been, but I think the solicitor must have been able to give evidence about the incidence of HAVS claims and the medical advice which could be  expected from doctors to whom such cases were referred.  Be that as it may, the discussion before the judge proceeded with Mr Legard, counsel for the defendants, saying:

“I think when I discussed it with my learned friend…that your Honour would be entitled to take judicial notice without making a precise finding as to a particular date that it was common knowledge both in the industry and medical profession that vibration white finger was a common industrial disease caused by excessive exposure to vibratory tools.  Now we could say that that was common knowledge in this part of the world through the 1990s but we are not going to say 1991 or 1996 and that is where we might be at odds, but we say that you would be entitled to take judicial notice of that, we say it as a commonly known or held fact, but whether or not the particular GP would have known or not is another matter.  I do not know whether that assists?”

The Recorder said:

“I mean all I can say is that during the 1990s I was sitting and barristers were pursuing these claims through the courts; I cannot say exactly at what stage it was in the 1990s, probably not in the early 1990s, it probably happened slightly later.  I think that is as far as it goes.”

13.	To digress a little, a swift piece of research this morning by Leveson LJ took him immediately to the 13th thirteenth edition of Munkman on Employers’ Liability where at paragraph 768 the authors say under the heading “HAVS”:

“Since as early as 1911 knowledge as to the possible damaging effects of operating hand‑held power tools has been developing.  Although there is no recognised universal date of knowledge applicable across all industries, in the three recent group vibration white finger judgments the date of knowledge in all of them was found to be the mid‑1970s.”

The rest of the paragraph and the eight following paragraphs show how knowledge of this condition and its cause were well established by at least the end of the 1970s.  

14.	But we return to what the Recorder said in this case.  There is no dispute that the onus is upon a defendant to establish constructive knowledge in this situation.  Although she does not say so in terms, there is nothing to indicate that the Recorder did not appreciate this.  Mr Skelt accepted under gentle questioning from Chadwick LJ that the judge was perfectly entitled to say:

“The disease was well known in the industry from 1976 and in this particular area of the country a large proportion of the working population was engaged in heavy industry using these types of tools.  Doctors would be likely to see it more here than in other areas.  By the 1990s it was a well known disease.”

Mr Skelt objects however to the final words of the passage which I have quoted, that is to say “it is unlikely that a doctor would dismiss symptoms without at least taking specialist advice”, and the sentence which precedes the passage which I have quoted which was “it was purely speculative it seems to me to say that if at that stage the claimant had seen a doctor there would not have been a correct diagnosis.”

15.	But in those passages the Recorder was not saying what a GP would actually have said if he had seen the claimant.  All she is saying is that a competent GP in this area would, for the reasons she has given, not have dismissed the symptoms without taking specialist advice.  Had this been done in the claimant’s case we know what that specialist advice would have been, there being no question of any relevant development of the understanding of HAVS and its causes during the period between 1997 and 2004.  

16.	For this reason I can see nothing objectionable in what the Recorder said.  I cannot see that it was necessary for the defence to call expert evidence to say what a GP would have said or done had he been consulted by the claimant in any of the years from 1993 through to 1997.  Put another way, for the reasons given by the judge, it was probable that a GP would have spotted HAVS or the possibility of HAVS and, if improbably, the claimant contended that this would not have happened in his case, the evidential burden to show this would shift to him.  But I do not think any such sophistry is required.  I do not think the Recorder strayed outside the bounds of what was common knowledge and common sense in reaching the conclusion which she did.  

17.	For these reasons I do not accept Mr Skelt’s submission and I would dismiss this appeal.

18.	LORD JUSTICE LEVESON: I agree.

19.	LORD JUSTICE CHADWICK:  I also agree.  At first sight there might seem force in the submission that the judge was not entitled to assume -- whether under the label of taking judicial notice or otherwise – that, had the claimant consulted a doctor as to his symptoms in (say) 1997 or thereabouts, he would have been diagnosed as suffering from HAVS: given that the defendant had put causation in issue).  But on further consideration this submission should be rejected.  

20.	The preliminary issue as to limitation was necessarily argued on the basis that the claimant was suffering from HAVS and that this condition was caused by his employment with the defendants.  Absent that assumption, the claimant would have no claim.  The position taken by the Recorder was simply that a consultation with a doctor would have led that doctor to recognise the need to consider whether HAVS was present; and, given that, that the probability was that (perhaps, after referral to a specialist) a correct diagnosis would have been made.  The claimant can only succeed in his claim on the basis that the correct diagnosis would have been that for which he contends: that he was suffering from HAVS.  That is the basis upon which this preliminary issue has to be determined.

Order: Appeal dismissed.