LIMITATION: DATE OF KNOWLEDGE: IT IS A MATTER OF FACT
I used to write a section/chapter on limitation in a legal looseleaf. The part on “date of knowledge” was, of course, my favourite*. Section 14 of the Limitation Act 1980 has led to many cases in relation to date of knowledge. Ultimately, however, the issue is usually determined by a finding of fact. In Carr v Panel Products (Kimpton) Ltd  EWCA Civ 190 the Court of Appeal refused an appeal against a factual finding on date of knowledge. The appeal is unusual in that, essentially, it attempted to challenge findings of fact made by the trial judge.
The claimant brought an action alleging hearing loss as a result of exposure to excessive noise at work between 1974 and 1981. The judge found that the action was brought outside the limitation period and refused to exercise the discretion available under Section 33 of the Limitation Act 1980. The claimant appealed against both decisions.
SECTION 14 OF THE LIMITATION ACT 1980
“14. – Definition of date of knowledge for purposes of sections 11 and 12.
(1) [Subject to subsection (1A) below.] 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.”
THE FACTUAL FINDINGS OF THE TRIAL JUDGE IN RELATION TO DATE OF KNOWLEDGE
“21. In the present case, I am satisfied, on a balance of probabilities, that Mr Carr has an actual date of knowledge of 2007 or at the latest 2008. I so find because:-
a) By then, he was suffering from hearing loss sufficient to attract a nick name at work based upon it, to provoke comment from his wife, and to cause the difficulties described to the medical experts;
b) These dates are corroborated by the Claimant’s accounts to the medical experts. He told Mr Parker (who examined in 2012) that he had been aware of a hearing loss for “a few years now” and told Mr Jones (in 2014) that he had been aware of moderate hearing loss for six years;
c) They are also corroborated by the reference in the Claimant’s witness statement (prepared in 2011) to having been aware of a hearing loss “for the past few years”;
d) The hearing loss then suffered by Mr Carr was a significant injury in that it was beyond de minimis. It was significant enough that he feared it would necessitate the prescription of hearing aids. Given that Mr Carr thought it sufficiently serious to justify the issue of these proceedings against this Defendant, I am satisfied on a balance of probabilities that he would then have thought it sufficiently serious to issue proceedings against a solvent Defendant who did not dispute liability;
e) I am also satisfied that at that stage, and again on a balance of probabilities, that Mr Carr did at that stage attribute his hearing loss to his work with the Defendant. He told me in evidence that he became aware of the connection between noise and hearing loss in his 30s (see paragraph 10 (above)), i.e. at an age preceding the date of the onset of his hearing loss. There was no other possible cause of his hearing loss that Mr Carr was aware of beyond aging. Specifically, he did not describe any history of deafness in the family (beyond his brother’s profound deafness as a result of contracting meningitis in childhood, which Mr Carr did not suggest featured in his consideration as to the possible cause of his own deafness), head injury, ototoxic drug use, or other possible causes. It is noteworthy that he did not have any other noisy employments.”
If wrong as to “actual knowledge” of significant injury, attributable to the employment which was alleged to constitute negligence or breach of duty, and of course Panel’s identity, then the judge found that Mr Carr was to be fixed with “constructive knowledge” about a year after becoming aware of his hearing loss. He found that simple consultation with a general medical practitioner would have provided the necessary information. Founding himself upon the judgments of this court in Johnson v Ministry of Defence  EWCA Civ 1505, if (as in that case) a man of 61 years of age in that case would reasonably be sufficiently curious about hearing loss to instigate inquiry into it, then the same would follow in a man almost 10 years younger, as in Mr Carr’s case.
“23. Applying an actual date of knowledge of 2007/2008 the claim should have been issued by 2010/2011. Applying a constructive date of knowledge of 2008/2009 the claim should have been issued by 2011/2012. On any basis, given my findings as to date of knowledge, this claim has been issued outside of the limitation period, and is accordingly statute barred by reason of the 1980 Act.”
DISCUSSION IN THE COURT OF APPEAL
The Court of Appeal rejected an argument that the trial judge had been in error.
Mr Hester, for Mr Carr, argues that (with regard to actual knowledge) the judge fell into the same error as the judge in Johnson (supra), identified in paragraph 18 of the judgment in this court in that case, in finding that Mr Carr had the relevant knowledge in 2007/8 because he knew (a) that he had hearing loss; (b) that noise could cause hearing loss; (c) that he had been exposed to noise; and thus (d) that his hearing loss had been caused by such exposure. As Johnson’s case shows, one cannot jump to point (d), simply because points (a) to (c) are satisfied.
It seems to me that the short answer to that point is that given by Mr Turton for Panel in his skeleton argument, namely that the judge did not believe Mr Carr on this point. He did make a finding. His finding in that respect is to be found in paragraph 21(e) of his judgment, already quoted above: “I am satisfied that at that stage [2007/8]…Mr Carr did attribute his hearing loss to his work with the Defendant…”. In my judgment, that was clearly a finding fully open to the judge on the evidence before him. He saw and heard Mr Carr giving evidence, during which Mr Carr was extensively cross-examined by Mr Turton. Mr Carr’s credibility on this point, and generally, was obviously a matter for the judge’s assessment and there is no reason to question his conclusion on the matter.
As to constructive knowledge, Mr Hester attacks the judge’s findings (at paragraph 22 of the judgment) that, given that Mr Carr accepted that there was no reason why he could not have consulted his GP within about a year of identifying his hearing loss, if he had done so, he would have been told the possible cause of his problem.
Mr Hester argues that, while Dame Janet Smith in her judgment in Johnson gave full reasons why (with her 40 years’ experience) she considered that such a GP consultation would have yielded the cause of the claimant’s hearing loss in that case, Mr Hester says that the judge here gave no such reasons and had no such experience of the nature as that possessed by Dame Janet, and, as a result, his opinion (and indeed that of Mr Carr) as to the likely outcome of a GP consultation should have been given no weight. Further, the ENT experts at trial were at odds as to the precise cause of hearing loss.
In my judgment, the judge was quite entitled to reach the view that he did as to what Mr Carr would have learnt at the hypothetical GP appointment which Mr Carr accepted could easily have been had. The judge was entitled to take into account the experience of Dame Janet Smith, recorded in the Johnson case, and even without it, he was entitled to reach the entirely common sense conclusion as to what Mr Carr was likely to have been told by his GP. Even if later medical experts eventually fell into dispute as to the precise nature of this hearing loss, it seems to me that the judge was entitled to find clear that a GP consultation would have led Mr Carr reasonably to pursue the matter and to take the decision, which he ultimately did, to bring these proceedings. It seems to me that his situation is indistinguishable for practical purposes from that of the claimant in the Johnson case: see paragraphs 28 to 31 of the judgments in that case.
*Actually it never was. I preferred writing about Section 33.