LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss.
THE LAW
The relevant sections of the 1980 Act
- Section 11(4) of the 1980 Act provides that in a case of this kind the limitation 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”.
- Section 14 of the 1980 Act defines the date of knowledge for the purposes of section 11, and provides as follows:-
(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.”
MR PLATT’S CASE
Mr Platt was bringing a claim for damages as a result of hearing loss. It was common ground that, by 1997, he knew he had significant hearing loss. In 2010 he read an article about noise induced hearing loss and proceedings were issued in 2011. The judge at first instance found that the date of knowledge, for the purpose of sections 11 and 14 was 2010.
THE CLAIMANT’S ARGUMENTS ON APPEAL
- As Mr Mallett submits, the enquiry directed by section 14(3) requires the court to consider the knowledge which the claimant might reasonably have been expected to acquire from facts ascertainable by him with the help of medical advice which it was reasonable for him to seek. The real question in this case is, as the judge identified, whether it would have been reasonable to expect Mr Platt to have asked his doctor in 1997 about the cause of his tinnitus and deafness. Undoubtedly, as the findings of the judge and Mr Matthews’s letter dated 8th September 2007 demonstrate, Mr Platt came very close to finding out that his tinnitus and deafness were at least partly noise induced at that time.
- But Mr Mallett makes a number of further short but cogent points. First, he submits that the judge applied the right objective test and that, in those circumstances, we should not interfere with what is, in effect, a finding of fact made by an experienced judge. Secondly, he says that Mr Platt had retired from his noisy work some 9 years before he suffered hearing loss, so a person in that position would have had no reason to consider whether the noise had caused his problem. Thirdly, he says, looking at all the circumstances of the case, as Dyson LJ’s dictum at paragraph 58 in Whiston enjoins us to do, it could not be reasonably expected that someone who had had a variety of ear problems over the 15 years preceding the events of 1997, would have asked his medical advisers at that time as to the cause of his tinnitus and deafness with which he was then presenting.
- These are powerful submissions, which chime with Smith LJ’s approach in Johnson in her paragraphs 29 and 30 set out above, and with the way the judge answered the question at paragraphs 23 and 24 of his judgment as follows:
“23. So this case comes down to this straightforward question, is he afflicted with constructive knowledge when he did consult the medical experts, they did not tell him because he did not then go on specifically to ask them? It is a difficult question to answer on the authorities because there is no real guidance as to where to go, except common sense. I think the fact is one has to bear in mind this man is not medically qualified, he is looking at an expert, he is impliedly asking the question, “What’s wrong with my hearing? What’s caused it and what can you do about it?” They do not appear to have answered the second question at all, nor indeed the first. They said basically, “You’re just suffering from deafness.” They did not tell him why or what was the cause of it. They certainly did not tell him what could be done about it, because in fact nothing could be done about it, except to avoid further damage.
24. I think to afflict a man who has consulted the medical profession on 12 occasions with constructive knowledge because he did not specifically question their own judgment of what they were telling him is too harsh a test and I am not prepared to afflict him with constructive knowledge on that basis.”
THE COURT OF APPEAL’S FINDINGS: DATE OF KNOWLEDGE HAD LONG GONE
This argument was not accepted by the Court of Appeal
- But in my judgment, the underlying problem with the judge’s approach and with Mr Mallett’s submissions is that they do not pay enough regard to the words of section 14(3) of the 1980 Act and to the test adumbrated by Dyson LJ in Whiston which I take to be the exposition of the law binding on us
- The court has to consider what knowledge the claimant might reasonably have been expected to acquire from the medical advice which it was reasonable for him to seek. The proviso to section 14(3) makes it clear that a person is not to be fixed with knowledge of something only ascertainable with expert advice so long as he has taken all reasonable steps to obtain and, where appropriate, to act on that advice. Here, Mr Platt did take all reasonable steps to obtain advice about his hearing loss. He was certainly not wrongly advised. He even reached the stage of being asked by Mr Matthews about noise at work. One might have thought that that conversation in itself, when later reported to Mrs Platt or some other third party, would have alerted Mr Platt to the possibility that the tinnitus and deafness were noise related. But the judge did not find that Mr Platt made that connection and his findings are not challenged.
- What is challenged, however, is the determination that it was not reasonable to expect a reasonable person in Mr Platt’s position to ask Mr Matthews whether the history of noise exposure which they had discussed (and are mentioned in Mr Matthews’s letter) caused or contributed to the symptoms with which Mr Platt presented. I cannot see how it could be anything other than reasonable to expect Mr Platt to have done so. The test imposes a demanding standard for the good reasons expressed by Lord Hoffmann in paragraphs 43 and 45 of his speech in Adams, and reiterated by Smith LJ in paragraph 25 of Johnson. Neither the fact that Mr Platt had been retired 9 years, nor that he had had multiple ear and hearing problems over the previous years, suggests to me that the circumstances made it unreasonable to expect him to be curious about the cause of these unpleasant conditions. It was a natural and appropriate question to ask. The purpose of section 14(3) of the 1980 Act is not to protect those who do not act reasonably in their own interests to obtain and act upon expert advice. That is made clear from the proviso.
- I should say, however, that the precise circumstances of the interview with Mr Matthew do not seem to me to be determinative. If they were, the predominantly objective test would be distorted. But that does not mean that, in considering all the circumstances of the case, one cannot have some regard to what actually occurred. Here, one might ask rhetorically why should Mr Platt not reasonably have been expected to ask Mr Matthews, who was diagnosing what was wrong with him, whether the problems he was experiencing were caused by the noise exposure they had already discussed? I am sure that the answer is that he should, and that the judge’s view that it was harsh to expect him to have done so was a failure properly to apply the applicable test. In my judgment, however, the outcome would have been the same even if Mr Matthews had not asked Mr Platt about noise exposure at all, as paragraph 28 of the judgment in Johnson implies.
- For these reasons, I would answer the question the judge posed by saying that, applying the appropriate test in section 14(3) with the guidance of Dyson LJ in Whiston, it was reasonable to expect Mr Platt to ask Mr Matthews what had caused his hearing loss in all the circumstances of this case. It is not disputed that, had he done so, he would have been likely to have been informed that his tinnitus and hearing were noise related.
- Before concluding, I should mention that Mr Mallett did not challenge the judge’s obiter finding in paragraph 25 of his judgment that, if he had held section 14(3) inapplicable, he would not have been prepared to dis-apply the limitation period under section 33 of the 1980 Act.