(1) JASON STUART MCCOUBREY V MINISTRY OF DEFENCE [2007] EWCA Civ 17
FACTS:-
The Claimant was born in July 1975 and he joined the Army in 1991. On the 15th October 1993 he was engaged in a training exercise on Salisbury Plain. A thunder flash was thrown in his trench, stunning him and causing ringing in his ears. Within a day or two, the Claimant noticed that the hearing in his left ear had deteriorated, and had become significantly worse than that in his right ear. He was medically examined and diagnosed with deafness and tinnitus. He was posted to Bosnia but had audiograms, which continued to show that the damage to his left ear remained pretty consistent. In August 2001, the Claimant was referred to an ENT consultant, who recommended a temporary downgrading of his status and an occupational assessment. By February 2002, the Claimant believed that his career was at a standstill. He then trained with his unit for deployment to Iraq but was told by his colonel that he would be deployed there, and was likely to be permanently excluded from active service.
The Claimant consulted solicitors in April 2003. On the 21st July 2004, they issued proceedings. The medical evidence showed that the impairment to the Claimant’s hearing and other symptoms had remained substantially unchanged since October 1993.
The Defendant denied liability and quantum, raising contributory negligence and most importantly limitation. There was a two day hearing on limitation and the trial judge found for the Claimant, finding that he could rely on section 11(4) of the Limitation Act 1980. No determination was made on section 33 of the 1980 Act. The Defendant appealed to the Court of Appeal.
HELD:-
Lord Justice Neuberger gave the judgment, with which Justice Tugendhat and Lord Justice Ward agreed. She considered the Limitation Act 1980 and in particular section 11(4), which said that proceedings must be brought;
“……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.”
It was common ground that the date identified by section 11(4)(a) was the 15th October 1996. The Claimant relied upon section 11(4)(b).
Section 14 expanded section 11 as follows:-
“(1)……in section…11…..references to a person’s date of knowledge are references to the date on which he first had knowledge….(a) that the injury in question was significant….”
(2) ….[A]n 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)……[A] person’s knowledge includes knowledge which he might reasonably have been expected to acquire…..from facts observable or ascertainable by him, or….from facts ascertainable by him with the help of….appropriate expert advice which it is reasonable for him to seek….”.
Lord Justice Neuberger also referred to section 33(1) of the Limitation Act 1980, which enables the court to permit a personal injury claim to proceed, even if it is brought outside the period permitted by section 11(4). She also considered the definition of “personal injuries” in section 38(1).
There was an important distinction between the two sets of provisions (section 11(4) and section 33(1)) – if the Claimant relied successfully on section 11(4), he could start his claim outsider the primary three year period as of right. If however he relies on section 33, the court has to carry out a balancing exercise in order to decide whether it was equitable to permit his claim to be brought.
The Claimant had said that in 2001, once he had been temporarily downgraded and restricted in his activities, he realised that the problem would affect his career. The advice given by his colonel had comes as a terrible shock to him.
Lord Justice Neuberger considered two cases, McCafferty v The Receiver of the Metropolitan Police [1977] 1 WLR 1073 and Dobbie v Medway Health Authority [1994] 1 WLR 1234.
In McCafferty Geoffrey Lane LJ said that the test was partly a subjective test, i.e “would this plaintiff have considered the injury sufficiently serious?” and partly an objective test, namely: “would he have been reasonable if he did not regard it as sufficiently serious?”
In Dobbie Bingham MR said that time did not run against a Claimant, even if he was aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant.
Lord Justice Neuberger also considered the cases of KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 and Catholic Care (Diocese of Leeds) v Young [2006] EWCA Civ 1534. in Catholic Care the Court of Appeal came to the conclusion that the Bryn Alyn case could not sensible survive intact as a result of the reasoning of the House of Lords in Adams v Bracknell Forest BC [2004] UKHL 29. Adams was concerned with the issue of section 14(3) of the Limitation Act 1980 as opposed to section 14(2) in Bryn Alyn and Young but the Court of Appeal decided that logic and consistency required the same approach to be adopted to both sub sections of section 14.
In Adams, Lord Hoffman said that the word “reasonable” is generally used in the law to important an objective standard, but that the degree of objectivity might vary according to the assumptions that are made about the person whose conduct is in question. The test in section 14(3) was not subjective. Lord Hoffman did not see how the Claimant’s particular character or intelligence could be relevant. He identified one exception to this principle. This exception arises where the condition or injury on which the Claimant’s case is based has relevantly affected the Claimant’s character or intelligence. The effect of the
Adams case was summarised by Dyson LJ in Young.
The decision in Bryn Alyn clearly enunciated a substantially subjective test, but this could no longer stand in light of the Adams case.
Lord Justice Neuberger made the following three points:-
The proper approach to the question raised by section 14(2) as to consider, on the hypothesis postulated by the section, the reaction to the injury (as opposed to its possible consequences) of a reasonable person in the objective circumstances of the actual Claimant, while disregarding his actual personal attributes, such as intelligence, aspirations, aggressiveness and the like.
The judge had taken into account the Claimant’s internal reasons for no pursuing an action, whereas such subjective factors should have been disregarded. If the judge had asked the correct question, there could have been only one possible answer, namely that the Claimant could not bring himself within section 14(2).
The Claimant was plainly aware of the nature and extent of the damage within a day or two of the injury. He had several medical diagnoses shortly after the accident and the extent of the injury had remained the same ever since it was suffered.
The Court of Appeal declined to deal with the issue of section 33 of the Limitation Act 1980. That issue would be remitted back to the trial judge.
FACTS:-
The Claimant was born in July 1975 and he joined the Army in 1991. On the 15th October 1993 he was engaged in a training exercise on Salisbury Plain. A thunder flash was thrown in his trench, stunning him and causing ringing in his ears. Within a day or two, the Claimant noticed that the hearing in his left ear had deteriorated, and had become significantly worse than that in his right ear. He was medically examined and diagnosed with deafness and tinnitus. He was posted to Bosnia but had audiograms, which continued to show that the damage to his left ear remained pretty consistent. In August 2001, the Claimant was referred to an ENT consultant, who recommended a temporary downgrading of his status and an occupational assessment. By February 2002, the Claimant believed that his career was at a standstill. He then trained with his unit for deployment to Iraq but was told by his colonel that he would be deployed there, and was likely to be permanently excluded from active service.
The Claimant consulted solicitors in April 2003. On the 21st July 2004, they issued proceedings. The medical evidence showed that the impairment to the Claimant’s hearing and other symptoms had remained substantially unchanged since October 1993.
The Defendant denied liability and quantum, raising contributory negligence and most importantly limitation. There was a two day hearing on limitation and the trial judge found for the Claimant, finding that he could rely on section 11(4) of the Limitation Act 1980. No determination was made on section 33 of the 1980 Act. The Defendant appealed to the Court of Appeal.
HELD:-
Lord Justice Neuberger gave the judgment, with which Justice Tugendhat and Lord Justice Ward agreed. She considered the Limitation Act 1980 and in particular section 11(4), which said that proceedings must be brought;
“……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.”
It was common ground that the date identified by section 11(4)(a) was the 15th October 1996. The Claimant relied upon section 11(4)(b).
Section 14 expanded section 11 as follows:-
“(1)……in section…11…..references to a person’s date of knowledge are references to the date on which he first had knowledge….(a) that the injury in question was significant….”
(2) ….[A]n 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)……[A] person’s knowledge includes knowledge which he might reasonably have been expected to acquire…..from facts observable or ascertainable by him, or….from facts ascertainable by him with the help of….appropriate expert advice which it is reasonable for him to seek….”.
Lord Justice Neuberger also referred to section 33(1) of the Limitation Act 1980, which enables the court to permit a personal injury claim to proceed, even if it is brought outside the period permitted by section 11(4). She also considered the definition of “personal injuries” in section 38(1).
There was an important distinction between the two sets of provisions (section 11(4) and section 33(1)) – if the Claimant relied successfully on section 11(4), he could start his claim outsider the primary three year period as of right. If however he relies on section 33, the court has to carry out a balancing exercise in order to decide whether it was equitable to permit his claim to be brought.
The Claimant had said that in 2001, once he had been temporarily downgraded and restricted in his activities, he realised that the problem would affect his career. The advice given by his colonel had comes as a terrible shock to him.
Lord Justice Neuberger considered two cases, McCafferty v The Receiver of the Metropolitan Police [1977] 1 WLR 1073 and Dobbie v Medway Health Authority [1994] 1 WLR 1234.
In McCafferty Geoffrey Lane LJ said that the test was partly a subjective test, i.e “would this plaintiff have considered the injury sufficiently serious?” and partly an objective test, namely: “would he have been reasonable if he did not regard it as sufficiently serious?”
In Dobbie Bingham MR said that time did not run against a Claimant, even if he was aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant.
Lord Justice Neuberger also considered the cases of KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 and Catholic Care (Diocese of Leeds) v Young [2006] EWCA Civ 1534. in Catholic Care the Court of Appeal came to the conclusion that the Bryn Alyn case could not sensible survive intact as a result of the reasoning of the House of Lords in Adams v Bracknell Forest BC [2004] UKHL 29. Adams was concerned with the issue of section 14(3) of the Limitation Act 1980 as opposed to section 14(2) in Bryn Alyn and Young but the Court of Appeal decided that logic and consistency required the same approach to be adopted to both sub sections of section 14.
In Adams, Lord Hoffman said that the word “reasonable” is generally used in the law to important an objective standard, but that the degree of objectivity might vary according to the assumptions that are made about the person whose conduct is in question. The test in section 14(3) was not subjective. Lord Hoffman did not see how the Claimant’s particular character or intelligence could be relevant. He identified one exception to this principle. This exception arises where the condition or injury on which the Claimant’s case is based has relevantly affected the Claimant’s character or intelligence. The effect of the
Adams case was summarised by Dyson LJ in Young.
The decision in Bryn Alyn clearly enunciated a substantially subjective test, but this could no longer stand in light of the Adams case.
Lord Justice Neuberger made the following three points:-
- Adams and Young had changed the law. The test under section 14(2) was substantially objective and not a mixture of subjective and objective in the way in which the analysis of Geoffrey Lane LJ in McCafferty was interpreted as indicating in a number of cases.
- The question of whether an injury is “significant” must be decided by reference to the seriousness of the injury and not by reference to its effect, let alone its subjectively perceived effect on the Claimant’s private life or career. This meant that section 14(2) had a comparatively limited application. The section had been enacted to extend the limitation period for victims of personal injury who were effectively unaware that they had been injured at all or who were aware that they had suffered an injury, which they reasonably believed to be very mild indeed, but which subsequently turned out to be very serious. There was the inter-relationship between section 11 and 14, and section 33. Sections 11 and 14 should be narrowly construed because it potentially allowed a Claimant to extend the time limit by many years. The Claimant always had the fall back of section 33 which enabled the court to carry out a balancing exercise.
- The third point involved identifying the assumptions that one makes about the reasonable person for the purposes of section 14(2). Does one assume merely that he is a hypothetical reasonable person who has suffered the relevant injury or condition (his general circumstances being irrelevant), or does one also assume that he is in the same objective circumstances as the actual Claimant? Lord Justice Neuberger felt that this issue was unlikely to make any difference in the vast majority of cases, and it made no difference to this appeal. However in her view, the objective circumstances of the Claimant (as opposed to his character, intelligence, ambitions etc. all of which could be fairly characterised as subjective) should be taken into account.
The proper approach to the question raised by section 14(2) as to consider, on the hypothesis postulated by the section, the reaction to the injury (as opposed to its possible consequences) of a reasonable person in the objective circumstances of the actual Claimant, while disregarding his actual personal attributes, such as intelligence, aspirations, aggressiveness and the like.
The judge had taken into account the Claimant’s internal reasons for no pursuing an action, whereas such subjective factors should have been disregarded. If the judge had asked the correct question, there could have been only one possible answer, namely that the Claimant could not bring himself within section 14(2).
The Claimant was plainly aware of the nature and extent of the damage within a day or two of the injury. He had several medical diagnoses shortly after the accident and the extent of the injury had remained the same ever since it was suffered.
The Court of Appeal declined to deal with the issue of section 33 of the Limitation Act 1980. That issue would be remitted back to the trial judge.