Joseph Johnson v Ministry of Defence (First Respondent) Hobourn Eaton Ltd (the period applicable is threeSecond Respondent)
| Jurisdiction | England & Wales |
| Judge | Dame Janet Smith,Lord Justice Etherton,Lady Justice Hallett |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1505 |
| Docket Number | Case No: B3/2011/3208 |
| Date | 21 November 2012 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 1505
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
HHJ SCARRATT
OUA31437
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Lord Justice Etherton
Dame Janet Smith
Case No: B3/2011/3208
and
Simon Levene (instructed by Onyems & Partners) for the Appellant
Richard Seabrook (instructed by Kennedys Llp) for the First Respondent
William Vandyck (instructed by DAC Beachcroft Llp) for the Second Respondent
Hearing date: 23 rd October 2012
Introduction
This is an appeal from the order made by HH Judge Scarratt in the Medway County Court on 30 November 2011. He dismissed a claim commenced by Mr Joseph Johnson in June 2010 against two former employers in which he alleged that, in the 1960s and 1970s, he had been exposed to excessive noise and had suffered deafness as a result. The judge dismissed the claim on limitation grounds, holding that, for the purposes of sections 11 and 14 of the Limitation Act 1980 (the Act), Mr Johnson had had knowledge of his cause of action by 2001. Further, the judge declined to exercise his discretion under section 33 of the Act so as to permit the action to proceed. Mr Johnson now appeals to this court with permission granted by the Court (Ward and Patten LJJ). Although the grounds of appeal covered both aspects of the judge's judgment, Mr Simon Levene, who appeared for Mr Johnson both in this court and below, abandoned the grounds relating to section 33 and the appeal proceeded only on the question of whether the judge had been right to hold that Mr Johnson had knowledge of his cause of action before June 2007.
The law
Section 11 of the Act provides for a special time limit in personal injury actions. Section 11(3) provides that an action shall not be brought after the expiration of the period applicable in accordance with subsections (4) and (5). Only subsection (4) is relevant in this appeal. It provides:
(4). … the 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 defines date of knowledge for the purposes of section 11. So far as relevant to this appeal it provides:
…. 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 of breach of duty and
(c) …
(d) …
and knowledge that any acts or omissions did or did not, as a mater 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 facts
The appellant was born in 1940. He worked at Chatham Dockyard for the predecessors of the Ministry of Defence from 1965 to 1970 and from 1974 to 1979. He was exposed to very loud noise and, subject to its limitation defence, the MOD, now the first respondent, admitted liability in the action. From 1969 to 1970, the appellant was employed by the second respondent, Hobourn Eaton Ltd, at premises in Strood, Kent where, he alleged, he was exposed to loud noise. The second respondent denied liability and also relied on limitation. A district judge ordered the preliminary trial of the limitation issues.
At the limitation hearing, the judge accepted the appellant's evidence as honest. The appellant said that he had become aware of a problem with his hearing by about 2001. At this time, he was having difficulty in hearing conversation against background noise, his friends were telling him that he was going deaf and he noticed that he tended to lean forwards and to cup his hand behind his ear to improve his hearing. He was aware that many years earlier he had worked in very noisy environments and knew that exposure to loud noise was capable of causing hearing loss. He had seen signs in his working areas advising that ear defenders should be worn; indeed he had tried the defenders but had found them very uncomfortable and had not persisted in their use. However, when his hearing deteriorated in about 2001, he did not associate this in his mind with his exposure to noise in the 1960s and 1970s. It did not occur to him that his deafness might have been caused by noise. He put his difficulties down to ageing and the occasional build-up of wax. Nor did it occur to him that he might have a claim against his past employers. He did not consult his doctor about his hearing until 2006, by which time his hearing had worsened. Even then, he did not go to his doctor specifically about his hearing. He was at the doctor's on account of his sciatica and, while there, asked his doctor whether there was any wax in his ears. The doctor examined his ears, pronounced them to be clear of wax and advised that any hearing difficulty was probably due to his age, which was then 66.
Nothing further happened until 2007 when the appellant was approached by the representative of a claims management company on the car park of his local supermarket. He was then told that he might have a claim against his former employers and was sent to see a consultant ENT surgeon, Mr Ellis Douek. The audiogram attached to his report, dated 15 April 2009, shows that the appellant suffers from severe deafness. He has now been given a hearing aid. Mr Douek expressed the view that noise was a major cause of the deafness. However, the audiogram is not entirely typical of noise-induced deafness and, if the claim were to go to trial, the respondents would contend that there were other natural causes also contributing to the appellant's deafness.
The judgment below
The appellant's case on limitation was that he did not know until he saw Mr Douek in 2009 that he had a significant injury or that his injury was attributable to exposure to noise. The judge held that, by 2001, the appellant had actual knowledge that he had a significant injury (for the purposes of section 14(2) of the Act). There is no appeal against that holding. Acceptance of that was sensible if not inevitable. By 2009, the appellant had severe deafness; if the only factor causing deterioration in the eight preceding years was the ageing factor, it is clear that by 2001, he must have been significantly deaf in the sense that, if he had known that he had a claim against his employers, it would have been worth suing them: see section 14(2) of the Act.
This appeal turns on the judge's holding in respect of attributability. Starting at paragraph 13 of his judgment, the judge said:
"13. Section 14(1)(b) of the Act deals with attributability: the test is "capable of being attributed". I have considered the Claimant's actual knowledge and have found. … that he was aware that he worked at times in noisy environments and was further aware that this could cause some hearing difficulties notwithstanding his view at the time that the onset of old age and occasional build-ups of wax were, perhaps, causative. That being the case, there is no need for me to make formal findings as to constructive knowledge pursuant to section 14(3) of the Act although it is apparent from all the evidence that the claimant must have been fixed with such constructive knowledge by 2006 at the very latest.
14. Broad knowledge of the essence of the cause of the relevant act or omission to which the injury is attributable satisfies section 14(1)(b) of the Act and "attributable" means "capable of being attributed in the sense of being a real possibility — see the principles set out by Brooke LJ in Spargo v North Essex Health Authority [1997] PIQR P235.
15. I find therefore that the claimant had actual knowledge at the time of the onset and development of symptoms in 2001. If I am wrong about that date, it is unassailable on the evidence, in my judgment, that by 2006 he did not ( sic—from the context the judge must have inserted the word 'not' in error) have actual knowledge of his condition and the probable cause of the same. As was said in Ministry of Defence v AB and others [2010] EWCA Civ 1317— "it is the knowledge of possibilities that matters; a claimant needs only enough knowledge for it to be reasonable for him to set about an investigation".
The judge then held that the appellant had failed to establish that his date of knowledge was after June 2007. He then considered section 33, refused to exercise his discretion to allow the action to proceed and dismissed the action.
The appeal to this Court—submissions
Mr Levene for the appellant submitted that the judge had...
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