Case No: B3/2011/3208
Neutral Citation Number: [2012] EWCA Civ 896
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MEDWAY COUNTY COURT
(HIS HONOUR JUDGE SCARRATT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 23 May 2012

Before:

LORD JUSTICE WARD
and
LORD JUSTICE PATTEN

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Between:

	JOHNSON
	
Applicant/
Claimant	
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(1) MINISTRY OF DEFENCE
(2) HOBOURN EATON LIMITED	

Respondents/
Defendants	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Official Shorthand Writers to the Court)

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Mr Simon Levene (instructed by Onyems & Partners) appeared on behalf of the Applicant.

The Respondents did not appear and were not represented.
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Judgment

Lord Justice Patten: 

1.	This is a renewed application by the claimant for permission to appeal against the dismissal by His Honour Judge Scarratt of his claim for damages for personal injury.  The claim relates to his deafness which is said to have been caused by the failure of two sets of employers, the Ministry of Defence and Hobourn Eaton Limited, in respect of periods of employment, in the case of the second defendant between 1969 and 1970 and in the case of the first defendant between 1974 and 1979, properly to implement sufficient precautions to protect the employees from the risk of damage to their hearing caused by the use of extremely loud machinery in their places of work.  The evidence before the judge was that there were signs up in the relevant factories indicating that ear defenders were available, but no proper system to ensure they were worn.

2.	The question of liability is not in issue on this appeal because, as I understand it, the breach of duty has been admitted.  The defences served on behalf of the defendants took as their primary line of defence a limitation point to the effect that the claim was out of time and this was directed to be heard as a preliminary issue.  It is against the judgment on that preliminary issue that this application for permission to appeal is made. 

3.	The learned judge accepted the defendant's case that the claim was out of time.  He held that, by 2006 at the latest, the claimant knew within the meaning of section 14(1) of the Limitation Act 1980 that, in the words of subsection (1)(b), the injury, i.e. the claimant's deafness, “was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty”.

4.	The effect of the date of knowledge being placed even as late as 2006 is that these proceedings were out of time, because they were not issued within three years of that date.  If, on the other hand, the date of knowledge occurred much later in October 2007 when the claimant was in receipt of some specific legal advice about this and medical tests were carried out which are said to indicate that the working conditions I have described were the cause of his deafness, then on the basis of that being the date of knowledge the proceedings are in time.

5.	The essence of this application is simply this: the judge noted in his judgment that as part of his evidence the claimant did accept that he was aware, at least at a theoretical level, that working in the conditions I have described could cause deafness.  In paragraph 13 of his judgment the judge says, having referred to the evidence I have just described at paragraph 10:

"13. ... I have considered the claimant's actual knowledge and found (evaluating all the evidence and especially his oral evidence) that he was aware that he worked at times in noisy environments and was further aware that this could cause some hearing difficulties notwithstanding his view at the time that the onset of old age and occasional build-ups of wax were, perhaps, causative."

He then goes on to say that on that basis in his view the claimant had actual knowledge by 2006 at the latest and it was unnecessary for the judge to consider whether relevant knowledge of the fact described in section 14(1)(b) should be attributed to him under section 14(3) on a constructive basis.

6.	So far as that is concerned, that has the difficulty that in 2006 the claimant did in fact consult his GP about the cause of his deafness and was in fact told that it was not the product of his having worked in the Chatham dockyard, but was simply due to his age.

7.	The question of knowledge ‑‑ and by this I am referring to actual knowledge ‑‑ has been the subject of considerable judicial debate over the years up to and including the recent decision of the Supreme Court in Ministry of Defence v AB & Ors [2012] UKSC 9.  But it is not, I think, necessary for the purposes of determining this application to go into the law in any detail.

8.	It seems to me that it is at the very least arguable that in order for somebody to have actual knowledge that the injury was attributable ‑‑ and “attributable” for these purposes means “capable of being attributed” ‑‑ to the alleged breach of duty, the claimant must have an actual belief based on the objective facts and any other matters actually known to him which fixes him with that state of knowledge.  What the judge has, I think, done is to separate the claimant's belief that working in noisy conditions might cause deafness with his actual belief that his own deafness was attributable to his old age or perhaps occasional build-ups of wax in his ears.  And in that context it is perhaps relevant to note that in paragraph 11 of the Ministry of Defence case, Lord Wilson, having reviewed the earlier authorities, says in terms that he considered that the court should "reiterate endorsement for Lord Donaldson's proposition that a claimant is likely to have acquired knowledge of the facts specified in section 14 when he first came reasonably to believe them".  If one applies that test literally to the facts of this case then, at the very least, it is arguable that it was not satisfied.

9.	So, for those reasons, I think that a sufficient case has been made out for the grant of permission to appeal and I would grant permission.

10.	However, I would also add that, bearing in mind the likely quantum of this claim, this is clearly one of those appeals which should first undergo the process of mediation which is now provided for by the Court of Appeal Mediation Scheme.

Lord Justice Ward:   

11.	I agree.  If I have anything to add, it is simply this: reading paragraph 6 of the judgment I would not have expected the conclusion that he had actual knowledge in 2001, but the transcript will no doubt clarify exactly what evidence he gave.

12.	I endorse what my Lord has said about mediation.

Order: Application granted