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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McCoubrey v Ministry of Defence [2007] EWCA Civ 17 (24 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/17.html Cite as: [2007] 1 WLR 1544, [2007] EWCA Civ 17, [2007] WLR 1544 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MEDWAY DISTRICT REGISTRY
Her Honour Judge Cox
4ME02516
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NEUBERGER
and
MR JUSTICE TUGENDHAT
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JASON STUART MCCOUBREY |
Claimant/ Respondent |
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- and - |
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MINISTRY OF DEFENCE |
Defendant/ Appellant |
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Ms Ruth Downing (instructed by Messrs John Copland & Sons) for the Respondent
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Crown Copyright ©
Lord Justice Neuberger :
The factual history
The Limitation Act 1980
"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."
"(1) …[I]n section.. 11…references to a person's date of knowledge are references to the date on which he first had knowledge…(a) that the injury in question was significant…..
(2) …[A]n 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) …[A] person's knowledge includes knowledge which he might reasonably have been expected to acquire…from facts observable or ascertainable by him, or…from facts ascertainable by him with the help of…appropriate expert advice which it is reasonable for him to seek…."
"'Personal Injuries' includes any disease and any impairment of a person's physical or mental condition, and 'injury' and cognate expressions shall be construed accordingly."
The hearing and decision below
"99. I accept that, because of his training, the claimant would have known, from a date prior to October 1993, that impairment to his hearing had the potential to restrict his participation in active service. However, this was not the claimant's experience in reality… [T]he Army did not restrict his participation in any aspect of his service until August 2001…
100. I find the claimant was entitled to rely upon the Army's apparent unconcern about the claimant's hearing loss. I find that the claimant was reasonable in not regarding his injury as sufficiently serious to justify instituting proceedings for damages in the light of his employer giving the claimant reason to believe that this hearing defect was not sufficiently serious to exclude him from active service.
101. I find the claimant was reasonable in his belief until 9 August 2001. In respect of this, I rely on Mrs McCoubrey's statement, and also the claimant's own statement to his medical examiner in June 2001, when he said that his hearing defect "did not bother him on a daily basis". This was, of course, directly before he had the occupational assessment which led him to the downgrade in his medical clearance on 9 August 2001".
The case law on section 14(2)
"[I]t is clear that the test is partly a subjective test, namely: "would this plaintiff have considered the injury sufficiently serious?" and partly an objective test, namely: "would he have been reasonable if he did not regard it as sufficiently serious?" It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages? I do not consider that it is permissible under this section to look into such problems as whether it would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job. Such considerations arise, if at all, under the new section 2D."
"The requirement that the injury of which a plaintiff has knowledge should be "significant" is in my view directed solely to the quantum of the injury and not to the plaintiff's evaluation of its cause, nature or usualness. Time does not run against a plaintiff, even if he is aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about. It is otherwise if the injury is reasonably to be considered as sufficiently serious within the statutory definition: time then runs (subject to the requirement of attributability) even if the plaintiff believes the injury to be normal or properly caused."
"Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally…"
Lord Hoffmann described this in the following paragraph as "persuasive", saying that it was "possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended." He therefore went on to reject dicta in earlier cases, which suggested that the test under section 14(3) should be subjective. In paragraph [47], he said that he did "not see how [the claimant's] particular character or intelligence can be relevant."
"[A] reference to knowledge which a person in the situation of the claimant, i.e. an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test."
"[T]he claimant is to be assumed to be a person who has suffered the injury in question, but in all other respects he is to be assumed simply to be a reasonable person. In determining whether a claimant had knowledge which he might reasonably be expected to acquire, the court has to consider how a reasonable person in the situation of the claimant would have acted, save that… aspects of character or intelligence peculiar to the claimant are to be disregarded. On the other hand, if the injury affects the claimant's ability to acquire knowledge or to seek expert advice, these are matters that can be taken into account. But in all other respects, the claimant is to be regarded simply as a reasonable person. Thus, his personal characteristics, such as shyness, embarrassment, his intelligence and his general circumstances are irrelevant so far as section 14(3) is concerned."
The proper approach to section 14(2)
Conclusions on section 14(2) in this appeal
Disposal of the appeal
Mr Justice Tugendhat:
Lord Justice Ward: