Howard Platt v BRB (Residuary) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lady Justice Sharp,Lord Justice Jackson |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWCA Civ 1401 |
| Docket Number | Case No: B3/2013/3797 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2014 |
[2014] EWCA Civ 1401
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
HH JUDGE HALBERT
11R54438
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice Sharp
and
Lord Justice Vos
Case No: B3/2013/3797
Mr Patrick Limb QC (instructed by DWF LLP) for the Appellant/Defendant
Mr Simon Mallett (instructed by Wixted & Co) for the Respondent/Claimant
Hearing date: 15th October 2014
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Mr Howard Platt ("Mr Platt"), who is now 76 years old, has recently brought a personal injury claim in respect of damage to his hearing against his former employers, BRB (Residuary) Limited ("BRB"). Mr Platt worked for what was more commonly known as British Rail at the Crewe Locomotive Works for some 35 years between 1953 and 1988, save for a 2-year break between 1961 and 1963 when he served in the Royal Air Force. The judge described his working conditions as a "very noisy environment".
The central question in this case is whether Mr Platt was affected in or around 1997 by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to acts or omissions alleged to amount to BRB's negligence. If Mr Platt was affected by such constructive knowledge, his personal injury claim will be statute barred under sections 11(4) and 14 of the Limitation Act 1980 (the "1980 Act"). If not, as the judge found he was not, he will be able to proceed with his claim notwithstanding that it relates to events that occurred more than 25 years ago. It is obvious that claims of that vintage are hard for an employer to defend as records will have been lost, witnesses will be untraceable or worse, and memories will anyway have faded.
In the briefest of outline, Mr Platt began complaining to his General Practitioner about his hearing in 1982. Between then and 2011, he consulted various doctors about ear problems of one kind or another on 12 separate occasions, but it was not until 2011 that he was told expressly that part of his hearing loss was noise induced. That was after he had read a newspaper advertisement about noise induced hearing loss. Most significantly, Mr Platt complained to his GP about tinnitus and hearing loss in his right ear in 1997, and was referred to a specialist Ear Nose and Throat ("ENT") Registrar. He was asked by that doctor whether he had worked in a noisy environment, to which he replied that he had. But Mr Platt did not ask him on that occasion whether his problems were noise induced, and the doctor did not volunteer that information.
The matter was tried by HH Judge Halbert, who gave judgment on 21 st November 2013. He held that Mr Platt did not have actual knowledge that there was a real possibility that his hearing loss was noise induced until he read a newspaper article in 2010, less than 3 years before he issued proceedings. In respect of constructive knowledge, the judge held that he should apply an objective test, and that a reasonable man of Mr Platt's age would be curious as to the cause of his deafness. Nonetheless, he concluded that Mr Platt was not affected by constructive knowledge of the cause, because "to afflict a man who has consulted the medical profession on 12 occasions with constructive knowledge because he did not specifically question their own judgment of what they were telling him is too harsh a test". In short, the judge held that, in all the circumstances of this case, it was not reasonable to have expected Mr Platt specifically to ask his ENT doctor about the cause of his tinnitus and deafness in 1997 (or, by implication, at any time before 2010). The judge granted BRB permission to appeal because "there was a lack of clear authority as to the extent to which a Claimant who seeks medical advice is expected to question the doctors when no cause for his condition is given".
The judge considered the three important authorities available at the time of the trial, and we have been referred also to another Court of Appeal judgment on the point that was handed down since then. I will return to deal with these cases, once I have set out the applicable statutory provisions and a little more detail about the chronological background.
The relevant sections of the 1980 Act
Section 11(4) of the 1980 Act provides that in a case of this kind the limitation 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".
Section 14 of the 1980 Act defines the date of knowledge for the purposes of section 11, and provides as follows:-
(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) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against 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 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."
It is common ground that Mr Platt had knowledge that his injury (i.e. his tinnitus and hearing loss) was significant within the meaning of section 14(1)(a) of the 1980 Act by 1997 at the latest. The main question is, therefore, whether he had constructive knowledge under sections 14(1)(b) and 14(3) of the 1980 Act that the injury was attributable in part to an act or omission of his erstwhile employers by that time.
The chronological background
Mr Platt was born on 7 th May 1938. He was employed by BRB or its predecessors from 1953 to 1988. The judge dealt with some of the detail of that employment, but it does not seem to me to be important to what we have to decide since it is common ground that he was exposed to noise in the course of it.
In 1982, Mr Platt first consulted his doctor about his hearing problems. His audiogram was recorded as normal, and he was diagnosed as suffering from generalised sinusitis.
Mr Platt made three more visits to his GP in 1980s complaining of catarrhal deafness, and a further 3 visits in 1990 complaining of ear wax, otalgia (ear pain originating in the inner ear), and "R.O.M." (an abbreviation which the parties were not able to explain).
After reporting two apparently unrelated ear problems in 1996 and March 1997, Mr Platt complained in May 1997 to his General Practitioner, Dr J Lind ("Dr Lind"), of "right tinnitus and reduction in hearing, particularly on that side". Mr Platt was referred to an ENT specialist, a Mr J Matthews ("Mr Matthews"), whom he saw on 29 th August 1997. The judge found that Mr Platt was asked by Mr Matthews whether he had worked in a noisy environment, and he replied that he had. Mr Platt did not, however, go on to ask and was not told that he was suffering from noise induced hearing loss.
On 8 th September 1997, Mr Matthews reported back to Dr Lind by a letter which it is worth reciting in full:-
"Thank you for asking me to see this 60 year old gentleman who has noticed a hearing loss especially on the right side for the last 18 months. It is associated with a high pitched tinnitus. He also has problems with loss of balance which is momentary and associated with head and neck movements. There is no history of trauma. He gives a history of noise exposure in the past.
On examination both tympanic membranes were intact and normal. Neurological examination was normal. Audiogram showed asymmetrical high frequency sensori-neural loss on the right side. In view of this I have requested a MRI scan of his IAM's [internal auditory meters]. We will see him back with the results."
In 2005, Mr Platt consulted his doctor again about wax in his right ear.
In 2008 or 2009, the judge found that Mr Platt's wife began complaining that he was turning the volume up on the television so that it was too loud and that Mr Platt was not communicating properly in social situations, but Mr Platt paid no attention to his wife and did nothing about her complaints.
In August 2010, Mr Platt read an article about industrial hearing loss and tinnitus in a newspaper. It was that which lead him to contact solicitors, and to consult an Ear Nose and...
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