Knipe v British Railways Board
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE SACHS,LORD JUSTICE STAMP |
| Judgment Date | 05 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1105-3 |
| Date | 05 November 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J1105-3
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from judgment of Mr. Justice Cusack on 6th May, 1971, at Carlisle Assizes.
The Master of the Rolls (Lord Denning)
Lord Justice Sachs and
Lord Justice Stamp
Mr. TUDOR EVANS, Q. C., and Mr. HART JACKSON (instructed by Mr. Evan Harding) appeared on behalf of the Appellant Defendants
Mr. MORRIS JONES, Q. C., and Mr. A. W. BELL (instructed by Messrs. Barlow Lyde & Gilbert) appeared on behalf of the Respondent Plaintiff.
This is a most unusual case. Mr. John Knipe was an engine-driver employed by the London Midland and Scottish Railway Company in Cumberland, Over 23 years ago, on 2nd March, 1948, he was going to work. He was walking down some steps to the depot at Moor Road, Whitehaven. One of the steps gave way. He fell and injured his knee. He says that those steps were dangerous: that they had been a subject of complaint by a Works Council; and that his employers were at fault because they had not repaired them.
The records show that that injury was described at the time as "strained knee, left leg": and that Mr. Knipe was paid workmans' compensation by his employers from 2nd March, 1948, to 19th April, 1948: a total sum of £13 13s. 4d. After some weeks, he went back to his work as an engine-driver. He was aware of weakness in the knee all the time, but he managed reasonably well for many years. Then, in 1958, ten years after the accident, his knee gave him serious trouble. It often gave way, and he could not walk over rough ground. He went to his doctor, and then to a consultant. It was then discovered that his injury was far more serious than had originally been thought. He had a ruptured tendon. The consultant said: "It is obvious in retrospect that the injury must have gone undiagnosed". The original doctors did not realise how bad it was. They thought it was just a strained knee, and let him go back to work. If they had realised that it was a ruptured tendon, it could have been remedied by an operation. But, after ten years, it was too late to do anything. In 1958 the doctors told him that he would have to wear a caliper, that is, an iron support for his leg. From that time onwards he has had to wear it: but he has carried on with his work as an engine-driver all the way through.
On 16th November, 1958, Mr. Knipe wrote to his Union in these words:
"I wish to file a claim against British Railways. On March 2nd 1958 on my way to duty some steps belonging to British Railways collapsed and this resulted in the tendon of my left knee to become ruptured. In latter years there has been wasting of the muscles which forced me to consult my doctor, who transferred me to the specialist, the result being I now have to wear a caliper, the injury has impeded my walking".
The Union advised him that he had no claim for damages. It was, they said, a workmen's compensation case, and nothing else. That advice was quite correct - at that time. The Statute of Limitations barred any action for damages. The Union told him he could only claim workmen's compensation, and only then if he was not earning his full wages. They told him that the practice of the railway company was to wait until he retired, and then the company would pay him a lump sum in settlement of. any workmen's compensation for partial incapacity.
Mr. Knipe was dissatisfied with this advice, but he did not think he could go against it. He acquiesced in what they said, and went on working for another ten years. Then in 1968 diesel engines were introduced, and he became redundant. On 4th May, 1968, he left the service and received redundancy money.
At once Mr. Knipe said to himself: "Now is the time when the Union told me I should get my compensation for my accident". So, on the very next day, 5th May 1968, he approached his Union and asked them to institute a claim for damages in respect of his accident in 1948. The Union still took the view that it was not a case for common law damages at all: it was only a matter for a lump sum settlement under the Workmen's Compensation Act. They putit before British Railways. Eventually, on 30th September 1968, British Railways wrote to the Union, saying:
"I have enquired into this case and am prepared to offer your member, on the usual terms, a lump sum of £75 in final settlement of any claim which he may have under the Workmen's Compensation Acts" —
Mr. Knipe thought that £75 was quite ridiculous. In November 1968 he tried again to get his Union to take up the case. He told the Union that he rejected the £75 and asked the Union for their reasons for turning down the case. He said:
"I would also like to know if the N. U. R. have obtained the opinion of a lawyer in this case".
But he got no further with the Union. In December 1968, the Union simply said that he misunderstood the position. They still thought that he had no claim save under the Workmen's Compensation Acts.
Eventually, Mr. Knipe became so dissatisfied with the Union that about 20th January, 1969, he went to solicitors on his own account. They took up the case for him. His solicitors wrote to the Union, but got no satisfaction. So his solicitors determined to take action against British Railways. They went to a Judge and obtained ex parte leave for purposes of the Limitation Act, 1963. Then, on 15th January 1970, they issued a writ against the Board for damages for personal injuries.
The Judge found in favour of Mr. Knipe. He assessed the damages at £2,134.63. British Railways appeal to this Court.
The first point arises under the old Workmen's Compensation Act. In March 1948, the Workmen's Compensation Act of 1925, was in force. (The Industrial Insurance Act, 1946, did not come into force until October of 1948). British Railways said that, underSection 29 of the 1925 Act, Mr. Knipe had an option either to take workmen's compensation or to claim damages at common law. They said that he had received five weeks, workmen's compensation, and thereby exercised his option. I think the answer to this point is afforded by the opinion of the majority of the House of Lords in Young v. Bristol Aeroplane Company (1946) A. C. 163, which was adopted by this Court in Leathley v. John Fowler & Co, Ltd. (1946) 2 A. E. R. 326. It was there held that a man is not to be held to have exercised his option unless he knew that he had an option. If he did not know that he had a claim at common law, he was not to be barred by taking workmen's compensation. The Judge has found here that, although Mr. Knipe received payments, he did not know they were workmen's compensation payments. He thought they were sickness benefit. In any case, it is plain that he did not know he had an option of claiming one or the other. He is, therefore, not barred by Section 29 of the Workmen's Compensation Act, 1925.
The second point arises under the Limitation Act, 1963. This Statute is a jungle of words: but the decisions of this Court have trodden out a path through it. We have held that time does not count against a man until he knows, actually or constructively, that he has a worthwhile cause of action. Once he does know it, actually or constructively, he must bring his action within twelve months of knowledge of it. The proposition was so stated in Smith v. Central Asbestos Company (19,71) 3 W. L. R. at pages 214 and 215; and Lord Justice Stamp analysed the Section at pages 224 and 225. (Since August 1971, it is sufficient if he brings it within three years of knowledge of it: cee the Law Reform Act, 1971). The present case has a fresh complication. Here we have an interveningtime-bar. This accident happened in 1948. At that time the Limitations Act, 1939, gave six years in which to bring a common law claim. Mr. Knipe did not bring an action within those six years. So by March 1954, his common law claim was barred. It remained barred from that time forward, unless and until the bar was removed by the 1963 Act.
What is the effect of an intervening time bar? That is to say, what is the position when the man's claim was already statute-barred when the Limitations Act 1963 was passed? Take a simple illustration. Two men are exposed to injurious dust in 1955. It is due to the employer's breach of regulations. One of them is found suffering from pneumoconiosis in 1961. The other man is found suffering from it in 1964. The second man can clearly take advantage of the 1963 Act so as to overcome the time-bar. But, cannot the first man do likewise? I am sure that Parliament intended that he should be able to do so. Both men were affected by this insidious disease owing to the employer's breach of duty. The first man should not be deprived of compensation simply because his disease was discovered before the Act was passed.
Strangely enough, however, the Act nowhere deals with the position. But I think that it implicitly gives both men a cause of action. Section 1(3)(a) shows that, even though a claim is barred by the three-year period of limitation, nevertheless the plaintiff can bring an action so long as he does so within twelve months of getting to know the material facts. What are the material facts for this purpose? Here I draw upon our previous decisions. One of the most material facts is the knowledge that he has a cause of action. Time does not run against a man until he gets to know, actually or constructively, that he has a worthwhile cause of action. The first man in my illustration (although he knew in 1961 that hehad the disease) nevertheless he did not get to know that he had a cause of action - he cannot possibly have known it - until the 1963 Act was passed. He must bring his action within twelve months of getting that knowledge. The second man got to know it in 1964 as soon as he...
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