David William Carr v Panel Products (Kimpton) Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice McCombe |
| Judgment Date | 14 February 2018 |
| Neutral Citation | [2018] EWCA Civ 190 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2016/1446, B3/2016/2417 |
| Date | 14 February 2018 |
[2018] EWCA Civ 190
Lord Justice McCombe
and
Lady Justice King
Case No: B3/2016/1446, B3/2016/2417
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT LIVERPOOL
District Judge Jenkinson
3YQ26548
Royal Courts of Justice
Strand, London, WC2A 2LL
Jim Hester (instructed by Sintons LLP) for the Appellant
Philip Turton (instructed by DWF LLP) for the Respondent
Hearing date: 25 January 2018
Introduction
We have before us two appeals by Mr David William Carr (“Mr Carr”) from the Order of 15 March 2016 (sealed on 18 March 2016) of District Judge Jenkinson, sitting in the County Court at Liverpool, whereby he dismissed (with costs) Mr Carr's claim in the action against Panel Products (Kimpton) Limited (“Panel”) as being statute barred and ordered that the costs of the hearing on 15 March 2016 should be costs in the case.
The learned judge refused permission to appeal. However, permission to appeal was granted by Underhill LJ in two orders both made on 12 January 2017 (both sealed on 13 January 2017).
On the appeals, Mr Hester for Mr Carr submits, first, that the judge's decision on the limitation issues was wrong and, secondly, that the judge erred in principle in ordering that the costs of the (telephone) hearing on 15 March 2016 should be costs in the case.
Background Facts
Mr Carr is now 63 years of age, having been born on 9 November 1954. Between November 1974 and April 1981 he was employed by Panel as a Machine Operator in its business at Bootle in Liverpool. The business was the manufacture of flat pack furniture and involved the working of wooden materials on a variety of types of machine: these were identified as being drilling machines, large saws, routing machines and spindle moulders. Mr Carr's brief witness statement in the action described his work and his working environment, in one seven line paragraph, as follows:
“The company made flat pack furniture and I was employed as a machine operator. The machines I would work on would be drilling machines, large saws, routing machines and spindles. I also worked on an edge bander this put the tape on the side of the boards. It was a constantly noisy environment in which it was only possible to communicate by shouting or using hand signals. No hearing protection was provided at all.”
At trial the judge permitted Mr Carr to expand on this by giving evidence as to the extent of his usage of individual machines as outlined in a letter of 24 November 2014 written by his solicitors to the joint engineering expert (Mr Jim Garry). The evidence so given remained in dispute between the parties, but it was accepted (as the judge recorded in his judgment) that, if Mr Carr had worked on the machines so identified for the times alleged, he would have been exposed to excessive noise (absent – it is assumed – ear protection, which was also in issue). On that hypothesis, the noise exposure would have reached a “noise immission level” (“NIL”) of 100dB, which both parties' medical experts agreed was a pre-requisite for a diagnosis of noise induced hearing loss.
In oral evidence, Mr Carr said that he knew at the time that his was a “noisy job”. Comments about the noise were made by colleagues and he noticed a pleasant change in noise level when leaving the premises at the end of the working day. He said that he did not appreciate at the time that the noise could be injurious to his hearing and only realised that fact (perhaps) when he was in his 30s, i.e. between 1984 and 1994.
Mr Carr's evidence was that his allocation to work on particular machines on any day, or for any particular part of a day, would be determined by the works supervisor whose name was, he said, “Harry”. He did not recall the surname. Nor could Mr Carr remember the names of two other managers at the plant who might have been able to give material evidence. Mr Carr told the judge that “Harry” did keep written records of which tasks were being done on which machines by which employees and when, and he agreed that such records would have been more accurate, as to his (Mr Carr's) own day to day machine usage, than his own memory of it some 30 years later. It was and is common ground that all relevant former supervisory staff members would now be of a significant age and were in any event, for practical purposes, untraceable. Mr Carr also said that his work colleagues at the time lived in different parts of Liverpool to him and he had had no contact with any of them since leaving Panel's employment in 1981.
Mr Carr's employment with Panel ended in redundancy when the Bootle premises were closed in 1981. All the Bootle staff were made redundant. The machinery was moved out of the premises which were then used by other occupiers for other purposes. Thereafter, although we have no details before us (as to dates or otherwise), Panel was put into liquidation and was subsequently dissolved. It appears that the company was restored to the register in August 2013, on Mr Carr's petition presented on 25 May 2013 for the purposes of bringing these proceedings. No relevant documentation, contemporary to the time of Mr Carr's employment, has survived. That does not appear to have been in dispute. The whereabouts of potentially relevant witnesses, as Mr Carr's evidence confirmed, are unknown. There is no extant management of the company, which exists in name only and is represented in these proceedings only by insurers.
After a period of initial unemployment after leaving Panel, Mr Carr took up other jobs, none of which involved noisy environments, and in November 2007 he obtained an office job with Liverpool City Council. He said in his witness statement that he acquired a nickname at work of “What's That”, because that was a frequent interjection he made to colleagues having not heard what they were saying to him. His wife began to make comments about the high levels of volume to which he would put the television at home; this being so loud as to disturb neighbours. He had also had difficulty in hearing conversation with fellow passengers when dining on a cruise in 2008.
Mr Carr's evidence to the judge was that at that stage he attributed his hearing problem to “old age”, although he was then only 51 years old. He did not seek medical advice. He accepted that if he had seen a doctor at this stage he would have known the cause of his hearing loss. However, he had not consulted his GP because he was concerned that he would be prescribed hearing aids, a course which he wished to avoid at that age. At no stage has he seen medical practitioners to seek advice with regard to his hearing loss, as distinct from seeing the experts instructed in the present proceedings in the context of his claim.
Mr Carr did nothing to investigate his problem until late 2010/early 2011 when he received, through the letter box at his home, a “flyer” from his current solicitors, outlining the symptoms of noise induced hearing loss and indicating that potential routes of claim might exist, to be pursued on a “no win, no fee” basis. In his evidence, however, he said he was aware, from general advertising, of solicitors prepared to act on this basis in personal injury claims. He duly contacted the solicitors in Newcastle, by telephone from his home in Liverpool, when terms of retainer were discussed. He entered into a conditional fee agreement with the solicitors shortly thereafter. His witness statement, to which I have already referred, is dated 21 July 2011.
Expert medical opinion was sought from Mr AJ Parker DLO, ChM, FRCS in February 2012. Mr Parker reported in May 2012. A letter of claim was sent to Panel's insurers dated 22 June 2012, together with Mr Parker's first report. A response was written on 12 October 2012 (a few weeks outside the pre-action protocol period of 3 months), stating that the allegations made could not be admitted or denied, reserving the position about obtaining other medical evidence and as to limitation. After this, however, it was not until May 2013, that the petition was presented seeking the restoration of Panel's name to the Register for the purposes of the claim. None of the court papers relating to those proceedings have been before us.
The Proceedings
The claim form in the present action was issued in the Northampton County Court on 29 August 2013, some 32 years after the end of the relevant employment. The Defence in the action was served on 25 September 2013 and it pleaded that the claim was statute barred. It was said that the delay was extensive and without good reason. The pleading also put in issue the level of noise exposure alleged, the machines used by Mr Carr (and for what period or periods), the other machines that were in proximity to Mr Carr, the ability to hold conversation on the shop floor, and the provision (or otherwise) of hearing protection and warnings to its use.
In the Reply (served on 5 November 2013) it was alleged that hearing problems were not noticed by Mr Carr until 2010; it was alleged that, when so noticed, the problems were attributed by him to ageing. (At trial, the judge found the date of actual knowledge as 2007/8.) In the alternative, the Reply invoked the extension of the limitation period under section 33 of the Limitation Act 1980. It was alleged that hearing loss was insidious and that prompt and reasonable steps had been taken by Mr Carr to obtain medical advice. It was said that Panel's working systems were longstanding and were or “ought to be a matter of record”. Prejudice to Panel by the lateness of the claim was denied.
Service of medical reports by the experts revealed a divergence of view on the nature of the hearing loss and its extent. The joint engineering expert, Mr Garry,...
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