| LIMITATION OF ACTION — Personal injuries — Time limit — Soldier on training exercise suffering hearing damage from explosion — Military career remaining unharmed for eight years — Date of knowledge of significant damage — Whether test subjective — Limitation Act 1980, ss 11(4)(b), 14(2)(3)
McCoubrey v Ministry of Defence [2007] EWCA Civ 17
CA: Ward, Neuberger LJJ and Tugendhat J: 24 January 2007
The question whether an injury was “significant” for the purposes of s 14(2) of the Limitation Act 1980 had to 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 life or career.
The Court of Appeal so held in reserved judgments allowing an appeal by the Ministry of Defence from a decision of Judge Cox, sitting as a High Court judge in Medway District Registry on 17 March 2006, allowing the claimant, Jason McCoubrey, to bring his personal injury claim more than 10 years after suffering personal injury. The court, however, ordered the case to be remitted to the judge for her consideration of the claimant’s alternative argument relying on s 33 of the 1980 Act.
S 11(4)(b) of the Limitation Act 1980 requires proceedings for damages for personal injuries to be commenced within three years from the date on which the cause of action accrued or “the date of knowledge”, if later, of the person injured.
S 14 of the 1980 Act 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 had knowledge of the following facts—(a) that the injury in question was significant … (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 …from facts … ascertainable … with the help of medical or other appropriate expert advice which it is reasonable for him to seek.”
NEUBERGER LJ said that in 1993 the claimant, on a training exercise on Salisbury Plain, was stunned by an explosion. Within days he noticed deterioration in his hearing. His hearing loss was recorded by a doctor in 1994 but it did not deteriorate noticeably until 2001 when he was downgraded and prevented from being deployed with his unit in Iraq. It was a shock to him, affecting not only his career but also his self esteem. He believed his Army career was blighted by his hearing impairment. There were three recent decisions on s 14(2) of the 1980 Act. In Young v Catholic Care (Diocese of Leeds) [2006] EWCA Civ 1534; [2006] WLR (D) 277 it was suggested that the approach to that provision set out in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, could not survive as a result of the House of Lords decision in Adam v Bracknell Forest Borough Council [2005] 1 AC 76. The proper approach to s 14(2) now required a substantially objective test. The question whether an injury was “significant” had to 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 life or career. The provision was directed at whether the claimant ought reasonably to have appreciated that his injury was serious; its effect on his career prospects did not impinge on the issue of whether the injury was itself sufficiently serious. S 14(2) was enacted to extend the limitation period of victims of personal injury who were effectively unaware that they had been injured at all or who were aware that they had suffered what they reasonably thought to be mild injury but which subsequently turned out to be serious. What had to be considered was 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 his intelligence or aspirations. Thus the question was whether a reasonable person in the claimant’s position and with his knowledge of the injury, would on the hypothesis postulated by s 14(2), have considered the injury sufficiently serious to justify the institution of proceedings by February 2004 at the latest. He had plainly been aware of the nature and extent of the damage to his hearing within a day or two of the injury. The judge, who heard the case before the House of Lords’ decision in Adams’ case, had adopted the wrong approach. As a matter of law the requirements of s 14(2) were not satisfied. However the claimant’s alternative argument based on s 33 had not been considered by the judge and the case would have to be remitted to her for that issue to be decided.
WARD LJ and TUGENDHAT J agreed.
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