Neutral Citation Number: [2009] EWCA Civ 1645

Case No: B3/2008/0265
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE DEDMAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20th November 2008

Before:

LORD JUSTICE RIX
LADY JUSTICE SMITH
and
LORD JUSTICE MAURICE KAY
- - - - - - - - - - - - - - - - - - - - -

Between:

	HARRIS
	Appellant	
	- and -		
	
CDMR PURFLEET LTD 
(Formerly Purfleet Thames Terminal Ltd)	
Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr D McNair (instructed by Messrs Ross Aldridge) appeared on behalf of the Appellant.
Ms L Wyles (instructed by Aig Legal Services) appeared on behalf of the Respondent.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lady Justice Smith:

1.	This is an appeal from the judgment in favour of the defendants given by HHJ Dedman on 14 January 2008 in a personal injury claim brought in the Southend County Court.  The judge held that the claim was time-barred but that it failed on the merits in any event.  The claimant now appeals with the permission of the full court.  

2.	The first two grounds of appeal relate to the judge’s decisions on limitation and the third relates to the issues of liability, which are academic in this appeal unless the appellant succeeds on the limitation issues.

3.	The history of the claim is important.  From 1989, the appellant worked for the respondent as a cargo operative at their premises at Purfleet Thames Terminal. At the time with which the claim was concerned, he worked as the driver of a truck which moved cargo containers about the premises.  By a claim form issued on 18 January 2006, he sought damages for an injury at work on 20 February 2003.  However, in the Particulars of Claim which followed, it became apparent that the appellant was alleging that he had suffered repetitive strain injury as the result of the prolonged use of the steering wheel of the truck which he had to turn using only his left hand.  He claimed that he had developed a strain injury in the left shoulder.  He attributed this to several alleged breaches of common law and statutory duty.

4.	As to the facts, it was pleaded that, from September 2001, the appellant had been transferred to work full time as a truck driver.  Before that time he had spent only about 20% of his time driving a truck.  About six months after this transfer, he began to feel pain in his left shoulder.  The pain worsened as he continued driving the truck full time.  He complained to his supervisor Mr Semple about the pain and about the amount of driving he had to do. Mr Semple made no attempt to resolve the problem.  The pain worsened and the appellant tried using his right arm to turn the wheel.  He began to develop symptoms in that shoulder, but they fortunately were temporary.  He consulted his general practitioner about his shoulder pain in February 2003 and was signed off as unfit for work.  He never returned to that employment.

5.	The Particulars of Claim did not expressly recognise that there might be a limitation problem.  However, when asked to provide further information pursuant to CPR Part 18 the appellant pleaded that, for the avoidance of doubt, he would allege that it was not until he visited his GP in February 2003 that he knew that his injury was significant.  That was plainly a reference to the provisions of the Limitation Act 1980.  So far as relevant, section 11 of that Act provides: 

“(1) This section applies to any action for damages for negligence, nuisance or breach of duty ….. where the damages claimed by the plaintiff for the negligence nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies (which is not relevant to this appeal) the period applicable is 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.

And also Section 14 provides: 
“(1) … 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

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against 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.

(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.”

6.	The Part 18 reply made no reference at all to when the appellant first knew that his injury could be attributed to the acts or omissions of the defendant; nor was there any reference to the provisions of Section 33 of the Act which, so far as relevant,  provides: 

“Discretionary exclusion of time limit for actions in respect of personal injuries or death

(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 …. 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, …;

(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.

7.	On opening the case to the judge at the start of the trial, Mr McNair, who has appeared for the appellant throughout, raised the possibility that, if the judge were to be against him on the Section 14 issue, he would apply to rely on Section 33.  However, nothing further was said or done about that during the hearing and the appellant’s case on Section 33 was not put in writing. 

8.	The appellant’s evidence in chief was simply to confirm the truth and accuracy of his witness statement.  His statement had plainly been the basis on which the factual part of the Particulars of Claim had been based.  He asserted that the pain in the left shoulder had begun about six months after September 2002, which would have been in about March or April 2003, and that he had complained to Mr Semple about that and about the amount of driving he was having to do.  He was cross-examined by Ms Lucy Wyles, who has appeared throughout for the respondent.  Not surprisingly, so far as the issues of limitation were concerned, she focussed on when the symptoms in the left shoulder had manifested themselves and how serious they had been.  The appellant’s medical position was complicated by the fact that he had been involved in a road traffic accident in 1999, for which he was making a damages claim.  Some of the symptoms from that accident were still persisting at the time his left shoulder began to trouble him.

9.	Miss Wyles took the appellant through the general practitioner records, which showed that the first reference to his left shoulder was on 9 August 2002.  The entry recorded that there was pain on abduction and the appellant was given a steroid injection.  He was given a second injection into that shoulder on 30 August 2002.  There was a further reference to the left shoulder on 28 October 2002 to the effect that the shoulder pain was persisting and there was decreased movement on abduction.  It was said in the notes that the appellant could not sleep on that side.  There was then no further reference to the left shoulder until 17 February 2003 when it was recorded that the left shoulder capsule was tender and the appellant was referred for physiotherapy. A few days later, on 22 February, the notes record that the appellant had begun using his right hand to steer his vehicle at work and that that shoulder was now becoming painful.  On 26 March 2003, there was quite a long entry relating to the left shoulder, the problems with which was then said to be due to a ‘heavy locking truck in a job that he had been doing for years’.  The diagnosis was frozen shoulder and, according to the notes, the appellant was then put off work; in fact it was common ground at the hearing that the appellant had been put off work in February 2003, although that was not recorded in the notes, at least not in those available to the court.

10.	In cross-examination the appellant agreed that, where there was a difference between his recollection of events and the general practitioner records, the records were more likely to be correct.  

11.	Miss Wyles then challenged the appellant’s claim that he had complained to Mr Semple.  The respondent’s case on that issue was that all the appellant had ever said to Mr Semple was that he still had symptoms from his road traffic accident and that he had never made any reference to problems arising from his work.  The appellant maintained (at page 47E of the transcript) that he had complained that the congestion in the yard meant that he had to manoeuvre the truck more than he should have done and that this was causing him pain.  But Ms Wyles persisted in her attempt to get him to admit that he had not told Mr Semple that any part of his medical problems were anything to do with his work.  She suggested to him that, in fact, in late 2002 and even until late 2003 he was still suggesting, in the context of his damages claim for the road traffic accident, that all his symptoms, including his shoulder pain, were due to that accident.  This was plainly an attack on the appellant’s general credibility.  His response was to say that that was what he had genuinely thought at the time.

12.	That was all the evidence in relation to limitation and the evidence then moved on to issues of liability and causation. 

13.	At the end of the hearing, which took place on 5 December 2007, there was no time for oral submissions.  The judge directed that written submissions should be put in sequentially.  On 13 December Ms Wyles put in hers.  On limitation she noted that the appellant’s case was limited to his contention that he did not know until February 2003 that he had suffered a significant injury.  She continued: 

“There is no suggestion that his knowledge of the other matters set out in section 14(1) Limitation Act 1980 occurred any later than his knowledge that he had suffered a significant injury. He was not examined in chief as to his date of knowledge.”

14.	Ms Wyles then explained that the respondent’s case on limitation was that the appellant knew he had suffered a significant injury by 9 August 2002 when he had had the first injection into his shoulder, so the claim was time-barred.  The appellant had not relied on Section 33, she noted, and should not now be allowed to do so.  She herself made no submissions on the Section 33 issue.  

15.	Mr McNair’s response was dated 19 December.  On limitation he first conceded that the appellant had known that the injury was significant by August 2002, but then he mounted a completely new argument that the appellant had not known until much later that his injury was attributable to the acts or omission of the respondent.  He noted that in evidence the appellant had said that, as late as December 2003, he had still thought that his shoulder pain was attributable to his road traffic accident; but, Mr McNair submitted, a reasonable person in the claimant’s position would not have thought that; a reasonable person would have realised on 21 March 2003 -- when the general practitioner recorded his view that the shoulder pain was due to the heavy locking truck -- that that was the date of knowledge.  Mr McNair submitted that it should be inferred that it was then that the appellant first knew that his shoulder injury was attributable to his job.  Time should run from 21 March 2003 and so the claim had been brought in time.  If the judge was against him on that, he would rely on Section 33.  He argued that the respondent had not been prejudiced.   

16.	Finally, with what I regard as a breathtaking disregard for all that had happened at the trial and that which had been put in Ms Wyles’ written submission, Mr McNair submitted that the reason the respondent’s submission had not dealt with the question of attributability was because the respondent had no answer to the claim that the relevant date of knowledge was 21 March 2003.

17.	What happened then?  Ms Wyles did not receive Mr McNair’s submissions until 7 January 2008.  She took the view that it was too late for her to say anything in response.  The judge, it appears, did not contact Ms Wyles; he apparently carried on writing his judgment, which he sent out with an order on 14 January.  He made no reference in his judgment to the disparity between the submissions on the limitation issue between the two sides.  

18.	On the limitation issue, the judge observed first that the appellant’s case on date of knowledge was that time ran from February 2003, when his doctor put him off work.  Then, starting at paragraph 5, he said: 

“5. The Defendant’s case is that far from establishing that the Claimant’s date of knowledge was the occasion when he went to his general practitioner in February 2003 the evidence shows that he had in fact complained to the doctor on the 9th August 2002 when his shoulder pain was treated with an injection.  They say therefore that he must as at August have known for the purposes of section 14 of the Act that he had suffered some injury which was attributable to his work and which could therefore be said to have caused by the negligence or breach of statutory duty on the part of his employers and that it was a significant injury worth pursuing by way of a claim for damages against the Defendant which was clearly worth powder and shot.

6. It is interesting in fact to consider the GP’s records more closely.  He had suffered an accident at work when another driver drove into the side of his van on the 6th July 1999 and he complained as a result of that of headaches, right occiput pain, right elbow pain and right shoulder pain.  He next complained on the 14th November 2000 of the effects of whiplash injury/neck pain, but did not trouble his doctor again until May 2002 when he complained of neck pain and low back pain which persisted with occiputal headaches into July 2002.  on the 9th August 2002 he complained of pins and needles in the neck radiating to the shoulders and pain in the left shoulder on abduction for which he received an injection.  He returned to the doctor three weeks later and a further injection was applied to the left shoulder.  He was still complaining a fortnight later when he returned to the doctor on the 13th September.  On the 14th October 2002 the doctor sent a medical report to the Claimant’s solicitors, who were acting for him in connection with his claim in respect of the accident on the 6th July 1999, and followed this up with a letter on the 21st October and a further medical report on the 30th October 2002.  He did not go back to his doctor until the 17th February 2003 with tenderness in the left shoulder and a week later he told the doctor that he had started to steer his vehicle with his right hand and now this shoulder was painful.

7. In my judgment then the Claimant must as at October 2002 have been aware that he had suffered a significant injury, that this was attributable in at least some measure to the work he was doing and that the Defendants might have been responsible for it but he waited until January 2006 to issue his proceedings.” 

The effect was that the appellant had lost on Section 14.

19.	In this appeal Mr McNair submits, with some force, that that analysis is quite inadequate.  He drew the court’s attention to the case of Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811, where this court explained the requirement upon a judge to give adequate reasons for his conclusions.  I cite the passage relied on by Mr McNair: 

“The extent of the duty [depends on] the subject-matter.  Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt summarised the evidence) to indicate simply that he believes X rather than Y; indeed, there may be nothing else to say.  But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.  This is likely to apply particularly in litigation where, as here, there is disputed expert evidence, but it is not necessarily limited to such cases.”

20.	Mr McNair submitted that in this case the judge had not explained why he had concluded that the appellant’s date of knowledge was October 2002.  That was a date which neither party had contended for.  There was no reference to what evidence the judge had accepted or rejected.  The appellant did not know why he had lost.  

21.	On this point, Ms Wyles submitted that the case of English v Emery Reinbold and Strick Ltd [2002] EWCA Civ 605 was more relevant. There the court had said that a judgment should not be upset on the ground of inadequacy of reasons, unless, despite the advantage of considering the judgment with knowledge of the evidence and submissions made at the trial, the losing party is still unable to understand why it is that the judge reached his conclusion.  I accept that submission.  It is always desirable that a judgment should be comprehensible for the first-time reader.  This judgment was not.  However, that is not the test of the adequacy of the judge’s reasons.  The adequacy of the reasons must be tested in the context of the knowledge and understanding of those who were present at the trial.  In the present case, once one reads the pleadings, the relevant extracts of the transcript and the submissions of counsel, the judge’s reasons can be understood.  I do not commend them; it should not be necessary to look so closely into the pleadings and evidence, as this court has had to do, in order to see what the judge decided; but I do think that once that is done, it is reasonably clear why the judge decided as he did.  

22.	Moreover, insofar as I have any doubt about his reasons, I am firmly of the view that the conclusion the judge reached was the only one open to him on the evidence.  First, the date on which the appellant knew that his injury was significant was conceded to be August 2002.  Ms Wyles submitted that it looked as though, in holding that the date of knowledge was October 2002, the judge had taken an independent view of the GP records and had held that, although the appellant might not have been clear as to the significance of his injury in August when he had his injections, he must have been by October at the latest, because of the GP entry dated 28 October.  That, as it seems to me, is a possible explanation for his choice of October as the date of knowledge.  Indeed, some force is added to her submission by the judge’s reference later in his judgment, when considering Section 33, where he suggests that the date of knowledge might have been either August or October.  I do not think it greatly matters whether the judge thought that the date of knowledge of significant injury was August or October.  On any view, the judge held that the appellant knew that his injury was significant well before 18 January 2003.  

23.	As to the date on which he should reasonably have attributed injury to his work, I accept Mr McNair’s submission that the judge’s reasoning is quite unclear.  I think that he probably accepted the appellant’s own evidence in his witness statement, which was never disavowed, that he associated his injury with his work from about spring 2002.  However, if that was not the judge’s thinking, I do not see how he could possibly have accepted the submission that the appellant did not know of attribution until March 2003. I say that for the following reasons.  The pleadings clearly suggested that he knew of attribution in about April 2002.  The appellant’s witness statement gave the same impression.  The appellant led no evidence directly on the subject.  He did not say, in chief, that he only realised that his injury was connected with work in March 2003 when his GP told him so.  He was not asked directly about this in cross-examination and one can well understand why: the point had not been put in issue.  If it had been, Ms Wyles would no doubt have asked him when he first attributed his shoulder injury to his job.  If he had confirmed his statement, that would have been satisfactory for her, and his claim would have been clearly statute-barred.  If he had tried to claim that he did not know until either March 2003 or December 2003, Ms Wyles would have put his written statement to him and his credibility on that issue would have been quite destroyed.  I conclude that the finding against the appellant on this point was inevitable.

24.	Mr McNair submitted that the judge’s decision on these points was so unclear that the only fair solution was to send the case back for retrial.  Quite regardless of the merits or demerits of the issues of liability and causation, I cannot accept that submission in relation to the issues of limitation. It seems to me that, given the way in which this case was run, it would be manifestly unfair to the defendants to send this case back for rehearing. In my judgment, the first ground of appeal, relating to the judge’s holding on date of knowledge under Section 14, fails.

25.	I turn to the judge’s holding on Section 33.  The judge dealt first with the lateness of the application and the fact that it had never been formally raised or particularised.  He noted that the respondents could therefore regard it as unfair that he was prepared to deal with it.  However, he decided to do so and no complaint is now made of that.  
26.	Then the judge said, starting at paragraph 12 of the judgment: 

“12. Section 33 says that the Court may allow an action to proceed if it appears equitable to do so having regard to the extent to which either of the parties would be prejudiced.  I have under section 33(3) to consider all of the circumstances of the case and in particular the length of the delay and the reasons for it, the extent to which the evidence would be affected in terms of its cogency, the conduct of the Defendant after the cause of action arose, the extent to which the Claimant acted promptly and reasonably once he had the requisite knowledge and the steps he had taken to seek appropriate legal or medical advice.  This is not a case where the Claimant is under any disability which might have affected his conduct of the case. 

13. It is true that the delay between August or October 2005 and January 2006 is not so substantial but the Defendants might say that one needs to bear in mind that the overall period of delay of which the Defendants complain is of course far longer because that period which I have identified is only the over-run of the three years allowed for a Claimant to bring his claim.  This is not so for the law is clear I think that the length and reasons for the delay relate to that first period rather than the period beginning with the date of the accident complained of.

14. The factual evidence consisted only of that of the Claimant himself and that of Mr Gordon Semple on behalf of the Defendants.  Having heard their evidence I was satisfied that the only significant lack of cogency lay with the evidence of the Claimant rather than the Defendant’s witness and I do not think that the Defendant’s case was prejudiced by the delay.

15. No criticism could be made of the conduct of the Defendant in terms of delaying tactics but I think it is significant that the Claimant who already had solicitors acting for him in connection with his earlier claim and had had medical advice to suggest that he had a significant injury to this shoulder nevertheless did not act timeously or at least before limitation closed against him in connection with such complaints as he had with regard to the nature of his work.  On the best possible construction in his favour he knew by the 22nd February 2006 before issuing his claim.  

16. It is always difficult to balance the question of prejudice in connection with the loss of the value of a claim for a Claimant or the loss of a chance to defend a claim for a Defendant but the burden of showing that it is equitable for the Court to exercise its discretion in the Claimant’s favour rests on the Claimant himself and in this action I am not persuaded that it is just to do so.”

27.	Mr McNair made very brief oral submissions in support of his contention that the judge had erred because, having found that the respondent had not been prejudiced by the delay -- and it being obvious that the appellant had been prejudiced by the operation of Section 11 -- the judge ought to have exercised his discretion in the appellant’s favour.  I cannot accept that submission.  It is clear that when, at paragraph 14, the judge said that there was no prejudice to the respondent’s case, he was referring to forensic prejudice.  At paragraph 16, he undertook the balancing exercise required and expressly recognised that there was prejudice on both sides. The judge was then entitled, as he did, after considering the absence of excusable reasons for the delay, to hold that the balance of prejudice lay in the appellant’s favour.  In my view, there is no sign that the judge misdirected himself; he had an unfettered discretion, and accordingly I would reject the second ground of appeal.  

28.	That being so, the appeal must fail because the judge was right to hold that the claim was statute-barred.  It follows that the third ground of appeal, which dealt with the judge’s reasons in respect of liability and causation, is academic, and I do not propose to lengthen this judgment further by any discussion of it.

29.	I would accordingly dismiss this appeal.

Lord Justice Maurice Kay: 

30.	I agree.  Although I was party to the grant of permission to appeal in this case, the court did not then have the advantage of the written and oral submissions of Ms Wyles.  Now that we have, it has become clear that the forensic history of the appellant’s case on limitation, which has been described by Smith LJ, satisfactorily explains the rather piecemeal and laconic way in which the judge dealt with it.  It also demonstrates why it would be totally unfair to the respondent to allow the appeal on the basis that the judge’s reasoning was insufficient.  The brevity of the reasoning is tolerable in the circumstances.  I too would dismiss the appeal.

Lord Justice Rix:  

31.	I agree with both judgments.  In these circumstances, as my Lady has explained, we have not reached the third ground of appeal, that dealing with the merits of liability and causation.  Nevertheless, I would simply say this.  We have not, of course, heard oral argument on that third ground. Nevertheless, having considered the detailed written submissions of the parties on this ground 3, I would hazard the view that the appellant would have a difficult task in persuading me, at any rate, that the judge’s judgment was so inadequate in its reasoning, in respect of the matters of liability and causation, as to fall foul of the requirements regarding reasoning set out in English v Emery Reinbold and Strick Ltd [2002] 3 AER 385.  

Order:  Appeal dismissed