McGhie v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BUXTON |
| Judgment Date | 18 January 2005 |
| Neutral Citation | [2005] EWCA Civ 48 |
| Docket Number | B3/2004/1705 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 January 2005 |
[2005] EWCA Civ 48
Lord Justice Buxton
Lord Justice May
B3/2004/1705
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COLCHESTER COUNTY COURT
(HHJ THOMPSON)
Royal Courts of Justice
Strand
London, WC2
MR B LEECH (instructed by BT WHOLESALE LEGAL & BUSINESS SERVICES) appeared on behalf of the Appellant
MR R EASTMAN (instructed by MESSRS BIRKETT LONG) appeared on behalf of the Respondent
Tuesday, 18th Tuesday 2005
The claimant, Sean McGhie, is a very tall man, now aged about 30. He is apparently about 6-foot 5 inches tall. Very tall people sometimes are more susceptible to back problems than others and so unfortunately it was with Mr McGhie. These proceedings concern a back injury which he suffered on 26th August 1998. He was then working for the defendants, British Telecommunications Plc.
He had for some years, until about six weeks before this, been doing an office job for them. Then he moved to outside work which he was keen to do. On 26th August 1998 he was pushing rods, used to place cables along ducting, between manholes in the car park near a shopping precinct at Wickford in Essex. The rods he was pushing hit some obstruction and the jolt of this strained his back. He was off work for about three weeks but then returned because he was keen to do so.
It was not until 8th September 2003, rather more than five years later, that Mr McGhie started these proceedings claiming that his August 1998 back injury was caused by the breach of statutory duty or negligence of the defendants. The, to my mind, rather thin particulars in support of this claim said that the defendants had failed to provide Mr McGhie training in the use of hand rods and failed to provide him with suitable equipment such as quicks for the rods and had required him to enter the manhole to push the rods so that he had to work in a vulnerable crouching position.
The defendants had completed an incident investigation report form, dated 11th September 1998, soon after the incident but not the following day or two. Otherwise the next occasion when the defendants had reason to consider the matter was when they received a letter written by solicitors instructed by Mr McGhie and dated 30th May 2003. The letter was, to my reading, no more informative as to why it was alleged that the defendants were at fault than the subsequent particulars of claim.
Two things seem to have prompted Mr McGhie to start these proceedings when he did. First, he had had a back operation for a prolapsed disc on 10th June 2003 which happily has largely put right the back problems that he had suffered during the preceding four and a half years. He had been told in February 2003 that he needed this operation, and, at about the same time, he had spoken with one of his previous managers who told him that he should have been sent on a course and that there was special equipment of which he had no knowledge in August 1998. His evidence to the judge in the present case was that it was then that he realised that his condition was serious and that he might have a claim. So he took legal advice in April 2003.
On the face of it, Mr McGhie brought his claim rather more than two years outside the statutory limitation of three years for personal injury claims in section 11 of the Limitation Act 1980. The defendants pleaded that it was statute barred and the court ordered that limitation should be tried as a preliminary issue.
His Honour Judge Thompson heard this issue in the Colchester County Court on 22nd July 2004. Inferentially, but not I think explicitly, he decided (or perhaps the parties accepted) that the claim was brought outside the primary limitation period of limitation, but the judge went on to decide that it was nevertheless equitable to allow the claim to proceed and directed that the relevant limitation provision should not apply to Mr McGhie's claim under section 33 of the 1980 Limitation Act. The defendant appeals against this decision by permission of Kennedy LJ.
The three year period of limitation in section 11 of the 1980 Act runs from whichever is the later of the date on which the cause of action accrued—in this case 20th August 1998—or date of knowledge of the person injured. The date of knowledge is defined in section 14. This relevantly provides:
"(1) [Subject to subsection (1A) below,] 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 knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."
Subsections 2 and 3 provide:
"(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."
As I have said, the judge inferentially decided (or the parties agreed) that the date of constructive knowledge for the purpose of sections 11 and 14 was firmly more than 3 years before Mr McGhie started proceedings. In my view this decision or concession was plainly correct. To my mind the important point here is that although Mr McGhie told the judge that he only realised that his injury was serious when he was advised to have an operation, evidence shows that his back condition had continued to be at least significant during most of the preceding four and a half years.
There is a medical report dated 10th September 2003, served with the particulars of claim, prepared by Mr Alan Gardner, a Consultant Orthopaedic Surgeon. This refers to records which indicate that Mr McGhie suffered from chronic pain for three years before 1st December 1998. That is in the period before his injury which is the subject of these proceedings.
The pain began suddenly when he was moving a Christmas tree around Christmas 1995, so it seemed. The report also tells of frequent back pain and troublesome left leg pain in the years after the August 1998 incident with references to an orthopaedic surgeon and for physiotherapy. August 1998 was but the start of "severe back symptoms" which culminated in surgery in 2003. The report also says that Mr McGhie's back was somewhat vulnerable before the August 1998 incident. He is, as I have said, very tall. Mr Gardner also expresses the opinion that on the balance of probability a similar chain of events might well have occurred within five years or so of when it did occur.
So the defendants would no doubt, if necessary, say that the claim cannot be for more than the acceleration of what was probably going to happen anyway. That, if it were correct, would affect the quantum of the claim. That in turn, as I shall show, has some relevance to the section 33 question.
Returning, however, to the date of constructive knowledge. Mr McGhie plainly knew that his injury was at least significant from August 1998 or soon afterwards. It was not a back injury from which he recovered only for it to reappear in 2003. He knew the identity of his employer. He knew that his significant back problem was attributable in whole or in part to the work he was doing on 28th August 1998. He also knew, or might reasonably have been expected to find out with the help of his union or other appropriate expert advice, that his injury was attributable, if it be the case, to the acts or omissions alleged to constitute negligence or breach of duty by the defendants.
I say this dogmatically and in summary because it is not in issue in this appeal and with reference to the recent discussion on this topic in the House of Lords in Adams v Bracknell Forest Borough Council [2004] 3 WLR 89, 2004 UKHL 29. The majority decision in that case on constructive knowledge was that the test is or is mainly objective. Baroness Hale put a somewhat different slant on this which does not affect the present appeal. Lord Hoffmann said at page 101G, paragraph 47:
"In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate."
As I have said, the judge decided the section 33 issue in favour of Mr McGhie. Section 33 provides:
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which —
(a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any...
To continue reading
Request your trial
-
David William Carr v Panel Products (Kimpton) Ltd
...AC 76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a claimant who brings the c......
-
Kew v Bettamix Ltd and Others
...of exercising and overseeing the section 33 jurisdiction carry great weight." 40 The matter was addressed again in McGhie v British Telecommunications PLC [2005] EWCA Civ 48 in which May LJ explained proportionality in these terms: "35. In my judgment this is not a correct interpretation of......
-
The Chief Constable of Greater Manchester Police v Robert Carroll
...76, at [55], approving observations in Robinson v St. Helens Metropolitan Borough Council [2003] PIQR P9 at [32] and [33]; McGhie v British Telecommunications plc [2005] EWCA Civ 48, (2005) 149 SJLB 114, at [45]. Refusing to exercise the discretion in favour of a claimant who brings the cla......
-
Juanita Tyers (widow and executrix of the estate of George Tyers deceased) v Aegis Defence Services (BVI) Ltd
...76, para 55, approving observations in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, paras 32 and 33; McGhie v British Telecommunications plc [2005] EWCA Civ 48 at [45]. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the prima......