Kew v Bettamix Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALLETT,MR JUSTICE BENNETT,Lord Justice Leveson,Lord Justice Waller |
| Judgment Date | 14 November 2006 |
| Neutral Citation | [2006] EWCA Civ 439,[2006] EWCA Civ 1535 |
| Docket Number | Case No: 2006/0303 B3,B3/2006/0303, 0304, 0305, 0306 and 0307 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2006 |
[2006] EWCA Civ 1535
Lord Justice Waller
Vice President of The Court of Appeal, Civil Division and
Lord Justice Leveson
Case No: 2006/0303 B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON-UPON-THAMES
COUNTY COURT
4MB1710
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Ross QC and Mr Ivor Collett (instructed by Gaston Whybrew, Colchester) for the Appellants/Defendants
Mr Nigel Cooksley QC (instructed by Askews, Stockton) for the Respondent/Claimant
The concept of limitation of action has always been difficult to apply in relation to industrial disease or injury that is insidious in onset and gradual in development. In its present form, but following earlier legislation, Section 11 of the Limitation Act 1980 ("the Act") is the primary tool for correcting, among other things, the injustice of depriving an employee of a cause of action on the basis that he has developed a disease by reason of his working practices but has simply not known that he is ill. In section 33 of the Act, the law additionally creates an elasticity to the strict operation of limitation in personal injury cases and gives the judge a discretion to allow a case to proceed notwithstanding that the primary three year period (from whenever it commenced to run) has expired.
On 1 February 2006, at the Kingston upon Thames County Court, Her Honour Judge Williams was called upon to determine the limitation period within which the Respondent, Ian Kew, could bring an action against the Appellants, his present and former employers, in relation to the industrial injury Hand Arm Vibration Syndrome. She decided that the period started to run "on receipt (at the very latest) of the letter from the doctor dated 19 July 2000 and indeed quite possibly even earlier than that in view of the medical advice he had in 2000, or even earlier on the claimant's own evidence given orally". Although this meant that the primary period of limitation had expired prior to the commencement of proceedings (which was the important decision to be reached for the purposes of section 11 of the Act) , for reasons that I shall elaborate, the appellants submit that she had to fix upon a specific date.
The learned Judge then went on to exercise her discretion to disapply the primary provisions in relation to limitation, thus permitting the action to proceed. The Appellants challenge that decision and argue that the action should have been dismissed as statute barred. With the leave of the full court (Hallett LJ and Bennett J) , this appeal is mounted. The Respondent contends that the decisions reached by Judge Williams were both correct and, in any event, a perfectly proper exercise of her discretion. By Respondent's Notice, further reasons are advanced to justify each. In addition, there is also an appeal against the order for costs whereby the Judge required the Appellants to pay the entirety of the costs of the preliminary issue notwithstanding their success on primary limitation.
The Respondent's Working History and Primary Limitation
The Respondent is 57 years of age. From about 1970, during his employment as a labourer/fitters mate and then as an asphalter, he was exposed to the use of vibrating equipment. He said that in 1991, his fingers were starting to tingle and go numb. When he was cross examined, he said that he did not really take notice of the problem but thought that it was an effect of age. I interpolate the history to say that in this court the Appellants submit that his state of knowledge at that time was such that limitation then started to run. Reverting to his statement he said that the following year, the symptoms seemed to get worse in the cold and he did not have the same grip that he had previously had.
By 1998, the Respondent had been an asphalter for 28 years; he then became an inspector. When cross examined, he was asked about the symptoms in his hands:
"Q: By 1998/1999, it is of real concern to you. Is that fair? A: Yes
Q: By then, you do know that it is not just age, do you not? A: Roughly, yes."
In March 2000, the Respondent was subject to a routine health care assessment and was seen by an occupational nurse, who completed a questionnaire form from information supplied by the Claimant, which was passed to Dr Cleeland, an occupational physician. In a letter which Dr Cleeland wrote to the Respondent dated 29 March 2000, he said "you have some symptoms which might be attributable to exposure to vibration at work…". The Respondent was seen by Dr Cleeland again on 26 June 2000; this visit was followed by a further letter dated 19 July 2000 which the Respondent acknowledges that he received. It was in these terms:
"I can confirm that you are suffering from Hand Arm Vibration Syndrome affecting the nerve endings in the fingers of both hands. … Your exposure to vibration has ceased and should not recommence in the future. You will be reviewed again clinically in one year's time…".
A report signed by Dr Cleeland also dated 19 July 2000 which can only have been sent to the Appellants has the terse recommendation "No longer exposed – must not be re-exposed. Review in 1 year". Although the document in the bundle apparently came from Dr Cleeland's file, it is signed by him and it is not in issue that the present employers (being one of the Appellants) knew of the need for a review after a year. In the event, although there would have been a general health check each year, perhaps because he was not exposed to vibration (although no reason was proffered to the Judge) , he was not called for a review of the condition of Hand Arm Vibration Syndrome notwithstanding the recommendation and this matter was not revisited until 2003.
That happened in this way. At some time after the 2000 review, the Respondent heard from colleagues at work about the prospect of pursuing a claim after which he instructed solicitors. He completed a Review Questionnaire on 28 May 2003 and was reassessed medically the following month. The Respondent contended before the Judge that it was only after receipt of another letter from a doctor in June 2003 that he had knowledge within the meaning of section 11 of the Act. Proceedings were ultimately issued on 22 nd April 2004 after the Respondent had entered into a conditional fee agreement the preceding December and so it was argued that the primary limitation period had not expired. Both that question and the alternative contention that it would be appropriate to disapply the provisions of the Act came on for hearing before the Judge as a preliminary issue.
As to the expiry of the three year primary period of limitation, there were two issues relating to the Respondent's knowledge as defined by section 14 of the Act before the Judge. The first related to the date upon which the Respondent knew or might reasonably have been expected to acquire knowledge that he had suffered a significant injury attributable in whole or in part to acts alleged to constitute negligence. The second concerned equivalent knowledge in relation to the identity of a proposed defendant. It is unnecessary to say more about the latter issue which, in the words of Hallett LJ on the permission hearing, was robustly rejected by the learned judge and no longer in issue.
Neither is there a challenge to the Judge's conclusion that the primary period of limitation had, in fact, expired more than 3 years prior to the commencement of proceedings or, in other words, rejecting the date of knowledge submitted on behalf of the Respondent. What remains in issue, however, is the precise date from which limitation started to run, that is to say, the date from which the Respondent had the relevant knowledge. Its significance is that it is an important reference point highly material to the later decision under section 33 of the Act which, as I shall examine, requires the exercise of discretion to the determination whether to disapply the provisions of the Act having regard to all the circumstances and, in particular, the length of the delay and features arising as a consequence of the delay.
The Date of Knowledge
Section 11(4) of the Act prescribes the limitation period in an action for damages in respect of personal injuries as three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. The phrase "date of knowledge" is further defined by section 14(1) of the Act. The material part for the purposes of this issue is in sub paragraph (a) which refers to the date on which he first had knowledge that the injury in question was significant. That language is further defined in later sub sections as follows:
(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...
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