COAD V CORNWALL AND ISLES OF SCILLY HEALTH AUTHORITY [1996] 33 BMLR 168
FACTS:-
The Claimant was employed as a state registered nurse at the Defendant’s hospital. In August 1983 she injured her back when lifting a patient. In February 1984 her disability was assessed at 3%. In May 1990, CT scans revealed bulging of the lumbar vertebrae, which did not respond to treatment. Following a lumbar disectomy she realised that she would never work again. She contacted the Royal College of Nursing in January 1991 and solicitors a month later. Proceedings were issued in January 1993. Before a judge, it was held that time began to run against the Claimant from August 1983, but he would apply section 33 of the Limitation Act 1980 in her favour so as to disapply limitation.
JUDGMENT:-
Lord Justice Ward said that the proceedings had been issued nine years after the event. He considered Section 11 of the Limitation Act 1980, when the cause of action arose and Section 11(4), when she acquired the relevant knowledge. The judge had had no difficulty in deciding that time rang against the Claimant from the August 1983, the day of the accident. There was no challenge against that finding.
Ward LJ then considered section 33(3) of the 1980 Act and the list of considerations to be taken into account by the court. Section 33(3)(a) referred to the length of, and the reasons for, the delay on the part of the Claimant. Her explanation for the delay was quite simply that, she said that she did not know and did not realise that she could bring an action against the Defendants, as she was able to return to work after the accident. It was only after her attention was drawn to a newspaper article about a disabled nurse that she realised that she could bring an action against the Defendant. The judge had found her evidence on that point perfectly credible. The Defendant’s counsel submitted that a reasonable person would have sought advice or inquired of a trade union.
Ward LJ did not agree that the test was objective. Section 33(3)(a) was to be contrasted with Section 33(3)(e), which did appear to be objective. That was borne out by the case of Dale v British Coal Corporation [1992] PIQR 373 which considered Section 33(3)(e) in detail.
The plain words of Section 33(3)(a) could not be evaded. The words “on the part of the Plaintiff” indicated that the test was subjective.
There was then the question of the cogency of the evidence under Section 33(3)(b). The record of the training had survived. However the hospital had closed and the duty rosters had been destroyed. The lapse of time would also have an effect on the statements. The trial judge had decided on balance to exercise his discretion in favour of the Claimant. Ward LJ said that whether or not he would have come to the same decision was neither her nor there. The test was whether the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement was possible. In this case the Defendant had not established the judge was wrong.
Judge LJ and Rose LJ agreed.
FACTS:-
The Claimant was employed as a state registered nurse at the Defendant’s hospital. In August 1983 she injured her back when lifting a patient. In February 1984 her disability was assessed at 3%. In May 1990, CT scans revealed bulging of the lumbar vertebrae, which did not respond to treatment. Following a lumbar disectomy she realised that she would never work again. She contacted the Royal College of Nursing in January 1991 and solicitors a month later. Proceedings were issued in January 1993. Before a judge, it was held that time began to run against the Claimant from August 1983, but he would apply section 33 of the Limitation Act 1980 in her favour so as to disapply limitation.
JUDGMENT:-
Lord Justice Ward said that the proceedings had been issued nine years after the event. He considered Section 11 of the Limitation Act 1980, when the cause of action arose and Section 11(4), when she acquired the relevant knowledge. The judge had had no difficulty in deciding that time rang against the Claimant from the August 1983, the day of the accident. There was no challenge against that finding.
Ward LJ then considered section 33(3) of the 1980 Act and the list of considerations to be taken into account by the court. Section 33(3)(a) referred to the length of, and the reasons for, the delay on the part of the Claimant. Her explanation for the delay was quite simply that, she said that she did not know and did not realise that she could bring an action against the Defendants, as she was able to return to work after the accident. It was only after her attention was drawn to a newspaper article about a disabled nurse that she realised that she could bring an action against the Defendant. The judge had found her evidence on that point perfectly credible. The Defendant’s counsel submitted that a reasonable person would have sought advice or inquired of a trade union.
Ward LJ did not agree that the test was objective. Section 33(3)(a) was to be contrasted with Section 33(3)(e), which did appear to be objective. That was borne out by the case of Dale v British Coal Corporation [1992] PIQR 373 which considered Section 33(3)(e) in detail.
The plain words of Section 33(3)(a) could not be evaded. The words “on the part of the Plaintiff” indicated that the test was subjective.
There was then the question of the cogency of the evidence under Section 33(3)(b). The record of the training had survived. However the hospital had closed and the duty rosters had been destroyed. The lapse of time would also have an effect on the statements. The trial judge had decided on balance to exercise his discretion in favour of the Claimant. Ward LJ said that whether or not he would have come to the same decision was neither her nor there. The test was whether the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement was possible. In this case the Defendant had not established the judge was wrong.
Judge LJ and Rose LJ agreed.