Furniss v Firth Brown Tools Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Laws,Lord Justice Buxton |
| Judgment Date | 12 March 2008 |
| Neutral Citation | [2008] EWCA Civ 182 |
| Docket Number | Case No: B3/2007/1845 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2008 |
[2008] EWCA Civ 182
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Sheffield County Court
His Honour Judge Swanson
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Laws and
Lady Justice Smith
Case No: B3/2007/1845
6SE07881
Mr Robert O'Leary (instructed by Messrs Wake Smith & Tofields) for the Appellant
Mr James Robinson (instructed by Messrs Whitfield Hallam Goodall) for the Respondent
Hearing date: 28 February 2008
Introduction
This is an appeal from the decision of HH Judge Swanson sitting in the Sheffield County Court on 7 July 2007. On the hearing of a preliminary issue, the judge held that the claimant's claim for damages for noise induced hearing loss brought against two former employers had been brought out of time and was barred by sections 11 and 14 of the Limitation Act 1980; he also declined to exercise his discretion under section 33 of that Act to allow the action to proceed. The action was dismissed. The claimant appealed and permission was given by Sedley LJ. However, shortly before the hearing of the appeal, the appellant reached agreement with one of the employers, Barlows Shopfitters Ltd, as to the disposal of the claim against it. Accordingly, the appeal proceeded only in respect of the first respondent, Firth Brown Tools Ltd (hereinafter called 'the respondent').
At the end of the hearing, the court announced its intention to allow the appeal and to give reasons for that decision later. These are the reasons.
The Law
Section 11 of the Limitation Act provides that an action in negligence claiming damages for personal injuries must be brought within 3 years of the date on which the claimant's cause of action accrued or of the claimant's date of knowledge if later. Section 14 defines 'date of knowledge' as follows:
“14(1) In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts
(a) that the injury in question was significant; 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
(d) (not applicable)
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 which he might reasonably have been expected to acquire
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
The appellant was employed by the respondent from 1976 until 1981 or 1982. Later he was employed by Barlows Shopfitters from 1990 until 1998. He did not begin his action for damages until 3 June 2006. Thus, the first question for the judge was whether the appellant's date of knowledge fell before or after 3 June 2003. If the date of knowledge was after 3 June 2003, the claim could proceed. If the date of knowledge preceded 3 June 2003, the claim would be barred unless the judge was prepared to exercise his discretionary power under section 33 of the Act to allow it proceed on the basis that, in all the circumstances it would be equitable so to do. In the event, the judge held that the appellant had the requisite knowledge 'by 1998'. He refused to exercise his section 33 discretion.
The Evidence
The appellant is now 62 years of age. Before describing his evidence, it must be recorded that it was common ground between all counsel and the judge that he was an honest witness, doing his best to remember events (such as the onset of his hearing loss) and also his state of knowledge and belief at various stages of the history. He was not seeking to tailor his evidence to suit his purposes in the action.
The appellant had first been exposed to loud noise at work while employed by the RAF in the 1960s. In about 1969, he was provided with ear plugs; his ears were tested and he was told that his hearing was normal. The judge was later to hold that, from 1969, the appellant knew that exposure to loud noise was capable of causing harm to the hearing. That finding of fact was plainly justified and was not challenged before us.
The appellant contended that his work for the respondent was very noisy and he was never provided with hearing protection. During that employment, he was quite unaware of any problems with his hearing.
His employment with Barlows Shopfitters was also noisy and in about 1995 or 1996 he was provided with ear muffs. He told the judge that he understood that if he did not wear them he might be made deaf.
After 1995, the appellant was no longer exposed to any loud noise. Nonetheless, it appears that his hearing continued to deteriorate. In 2003, he heard, from a friend, of the possibility of claiming damages for noise induced deafness. In April 2004 he went for a hearing test at the Primary Hearing Centre in Sheffield. This was for the purpose of seeing whether he could be helped by a hearing aid. He was referred to hospital where he was given a hearing aid.
During the summer of 2004, he saw an advertisement placed by a solicitor who was inviting persons who thought that they might have noise induced loss to consult him with a view to claiming damages. The claimant contacted the solicitor who arranged a medical examination with Mr A R Welch, a consultant otolaryngologist. He advised that the appellant had hearing loss and tinnitus both of which were probably caused by exposure to loud noise. Mr Welch's report was provided on 12 September 2004.
The appellant's evidence about when he first noticed hearing loss was somewhat conflicting. His first recorded account was given to Mr Welch who noted that the appellant said that he had experienced a gradual deterioration in his hearing over 'the last couple of years', which was particularly marked in the presence of background noise. He described difficulty in hearing on social occasions in background nose; he mentioned the need to have the television sound turned up and some difficulty in using the telephone and hearing the bell. He described tinnitus, which did not disturb him when he was busy and did not affect his sleep.
In his first written statement dated 31 March 2007, the appellant said that he first began to notice symptoms of hearing loss “about 6 or 7 years ago”. That would be in 2000 or 2001. He continued: “The problems were pretty insignificant then. I did not think it was a significant problem until a few years ago”. In his second written statement, dated 23 June 2007, the appellant said that he first talked about his hearing problems to a neighbour some time in 2003. He continued: “Around that time, I was aware that I was suffering from some hearing loss, but I did not know that this was a consequence of my previous employment, although I had some suspicion that there could be a link.” He then described how he had visited his GP in November 2003, to report deterioration in his hearing and was told that this was due to a build up of wax, which was then removed. In the following paragraph, he said that his hearing had deteriorated further by the early part of 2004, despite the clearing of wax. He decided therefore to seek advice from the Primary Ear Care Centre. He was examined there on 23 rd April 2004 and was advised that his hearing loss was suitable for the provision of a hearing aid. He was not told that the audiogram suggested that the hearing loss might be noise induced.
In oral evidence, in chief, the appellant expanded on this account, explaining that he had consulted his GP about wax in his ears about once or twice a year since about 1999. He also described the onset of tinnitus, in about 1998 or 1999, saying that it was a 'low background hissing noise' on the left side. It did not interfere with his life markedly; he could ignore it if he was concentrating on something and it did not disrupt his sleep. He had assumed that it was either hereditary (as his mother suffered from it) or that it might be associated with stress as he was having a stressful time (trying to run a failing business) when the tinnitus began.
In cross-examination, Mr Robinson for Firth Brown Tools established first that the appellant must have been aware since the late 1960s that exposure to loud noise is capable of causing harm to the hearing. He then turned to the date of onset of hearing loss and demonstrated that, in the Reply, which dealt with issues of limitation, the appellant's counsel had pleaded that...
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Jonathan Carl Khairule v North West Strategic Health Authority
...69 In relation to the burden of proof on this issue Mr Maskrey drew my attention to a recent decision of the Court of Appeal in Furniss v. Firth Brown Tools Ltd. [2008] EWCA Civ 182, in which Smith LJ, giving the lead judgment, stated at paragraph 27 that the burden of proof under section 1......
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AB & Others v Ministry of Defence (No 2)
...a significant injury more than 3 years before the issue of the claim form rests on the defendant: Furniss v Firth Brown Tools Limited [2008] EWCA Civ 182. See also Gascoigne v Ian Sheridan & Co [1995] 5 Med. L.R. 437; Crocker v British Coal Corpn (1995) 29 BMLR 159, per Mance J and Parry v......
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Smith v Secretary of State for Energy and Climate Change [Court of Apeal]
...has not attended his GP in relation to his symptoms, however this is not uncommon and the Court is referred to the authority of Furniss v Firth Brown Tools [2008] EWCA Civ 182." She submitted (at para. 22) that this evidence established that "the Claimant has hearing problems indicative of ......
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Whiston v London Strategic Health Authority
...this context to Nash v Eli Lilly & Co [1993] 1 WLR 782, 796; Crocker v British Coal Corp [1996] 29 BMLR 159, 172–3 and 175; and Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182. I was invited to follow the reasoning of Mance J (as he then was) in Crocker on the basis that the later Court......