Sayers v Lord Chelwood and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Kitchin,Lady Justice Arden |
| Judgment Date | 19 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1715 |
| Docket Number | Case No: B3/2011/1980 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2012 |
[2012] EWCA Civ 1715
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HASTINGS COUNTY COURT
HIS HONOUR JUDGE HOLLIS
9WT03806
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Lord Justice Kitchin
Case No: B3/2011/1980
Mr. Simon Mallett and Mr. Guy Coleman (instructed by Wixted and Co Solicitors) for the Appellant
Mr. David Platt QC and Mr. Patrick Blakesley (instructed by Berrymans Lace Mawer) for the Respondents
Hearing date: 1 st November 2012
This judgment is in six parts, namely:
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Present Proceedings,
Part 4. The Appeal to the Court of Appeal,
Part 5. Did the judge apply the wrong test?
Part 6. How should the discretion under section 33 of the Limitation Act be exercised?
This is a personal injury action which was begun four years after the expiry of the limitation period. The issue in this appeal is whether the judge in the county court erred in failing to exercise his discretion under section 33 of the Limitation Act 1980 in favour of the claimant.
The claimant in this action is Mr. Clifford Sayers, who was born on 21 st November 1946 and is now aged 66. The first defendant is named in the claim form as Lord Chelwood. In fact Lord Chelwood died in 1989 and the action has proceeded as if the claim were being made against his estate. The second defendant is Lady Chelwood, who is Lord Chelwood's widow.
In this judgment I shall refer to the Limitation Act 1980 as "the Limitation Act". Section 11 of the Limitation Act provides that an action for personal injuries shall not be brought more than three years after the cause of action accrued or (if later) the claimant's "date of knowledge". The date of knowledge is defined in section 14 of the Limitation Act.
Section 33 of the Limitation Act provides:
"Discretionary exclusion of time limit for actions in respect of personal injuries or death.E+W
(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 person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
…
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to —
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."
After these introductory remarks I must now turn to the facts.
In 1981 the claimant started working for Lord and Lady Chelwood as a forester and gardener. Lord and Lady Chelwood lived in East Sussex. They had a garden of 1.3 acres and about 200 acres of forest. The claimant's work would on occasions involve the use of noisy equipment.
In 1988 Lord and Lady Chelwood sold off the forest, so that from then on the claimant's sole task was to look after the garden. In 1989 Lord Chelwood died. Thereafter the claimant continued to work as a gardener employed by Lady Chelwood.
In May 2000 the claimant's employment with Lady Chelwood came to an end. Thereafter the claimant was employed by Express Dairies as one of the drivers of their vans and lorries.
By the time that the claimant left Lady Chelwood's employment he was suffering from hearing loss and tinnitus. According to the claimant, he told Lady Chelwood about this problem before 1989. Lady Chelwood replied that she had similar symptoms. This was because she used to accompany Lord Chelwood when he was shooting and she loaded his guns.
The cause of the claimant's hearing loss and tinnitus is a matter of dispute in this litigation.
Express Dairies provided periodic health checks for their employees. On an unknown date in 2002 the claimant attended such a health check. The nurse who was carrying out this examination tested the claimant's hearing. On the basis of that test she advised the claimant that he may be suffering from noise-induced industrial hearing loss.
In April 2005 the claimant consulted his general practitioner, Doctor Morris. Doctor Morris referred the claimant to the ENT Department at Kent and Sussex Hospital in Tunbridge Wells. In the letter of referral Doctor Morris wrote as follows:
"I would be grateful if you could see this charming fellow who has noticed some hearing loss and ringing in his ears. He tells me that he has had some considerable noise exposure in the past with various jobs he has done. He is currently finding difficulty hearing people speak at normal volume particularly if there is background noise. He has not suffered any dizziness.
…
Examination of his ears is normal.
I enclose a copy of an audiogram performed at the surgery recently which shows a high frequency loss bilaterally."
On 27 th June 2005 the claimant attended the ENT department at Kent and Sussex Hospital. Doctor Rahiem examined the claimant and then reported as follows to Doctor Morris:
"I reviewed this gentleman today on behalf of Miss Lloyd with a gradual loss of his hearing over the years with bilateral tinnitus, which can occasionally disturb his work and his sleep. There are no significant vertigo or ear problems. He is known to have high cholesterol for which he is on regular treatment.
On examination I could not find any abnormality and the audiogram showed presbyacusis. I have reassured him that there doesn't seem to be any sinister pathology behind it. I am arranging for him to have a hearing aid as well as hearing therapy and we will review him again in one year's time."
A year later the claimant attended the ENT Department for a review. On this occasion Doctor Datta examined the claimant. On 29 th June 2006 Doctor Datta sent the following letter to Doctor Morris:
"I saw this gentleman in clinic today who has had tinnitus and hearing loss for a few years following noise exposure at work.
Examination today showed his ears to be clean and healthy and the tympanis membranes looked normal. PTA shows his hearing remains ISQ with bilateral high frequency loss.
I have arranged for him to have a digital aid fitted but not arranged to see him again in the ENT clinic. We would of course be happy to see him again should he have further problems."
In or about the summer of 2006 the claimant saw on television what he describes as "a big glitzy advert". This advertisement encouraged viewers to make personal injury claims. The claimant duly responded and was put in touch with Messrs Wixted and Co ("Wixted"), a firm of solicitors in London. In October 2006 the claimant instructed Wixted to pursue a claim on his behalf for personal injuries sustained while he was employed by Lord and Lady Chelwood.
Wixted investigated the matter in a somewhat leisurely manner. They then commenced the present proceedings.
On the 1 st July 2008 Wixted sent a letter of claim to Lord and Lady Chelwood. Lord Chelwood, of course, was deceased. Lady Chelwood referred the matter to her insurers, who instructed Mssrs Berrymans Lace Mawer ("Berrymans") to deal with the claim.
On 29 th September 2009 Wixted commenced proceedings in the Wandsworth County Court on behalf of the claimant against Lord and Lady Chelwood. On 18 th January 2010 Wixted served the claim form together with particulars of claim on Lady Chelwood's solicitors.
I am bound to say that Wixted's handling of this matter leaves much to be desired. Despite the fact that this was a stale claim with obvious limitation difficulties, they delayed for three years before commencing proceedings. When they did so, they named Lord Chelwood rather than his estate as first defendant. The particulars of claim, as drafted by Wixted, alleged numerous breaches of the Factories Act 1961, even though that Act could not possibly be applicable.
The claimant's counsel, Mr. Simon Mallet, with masterly understatement describes all these matters as "unsatisfactory features". He states that the claimant's real case against Lady Chelwood and her husband's estate is comprised in the pleaded particulars of negligence at paragraphs 6(k) to (n) of the particulars of claim. These state:
"(k) Failed to...
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