McCoubrey v Ministry of Defence [2007] EWCA Civ 17

Case No B3/2006/0742[2007] EWCA Civ 17
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MEDWAY DISTRICT REGISTRY
Her Honour Judge Cox
4ME02516
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 24th January 2007
Before
LORD JUSTICE WARDLORD JUSTICE NEUBERGERMR JUSTICE TUGENDHAT
Between
JASON STUART MCCOUBREYClaimant/ RespondentMINISTRY OF DEFENCEDefendant/ Appellant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Robin Tam QC (instructed by Messrs Beachcroft LLP) for AppellantMs Ruth Downing (instructed by Messrs John Copland & Sons) for Respondent
JudgmentLord Justice Neuberger :
[1]This is an appeal against an order of Her Honour Judge Cox, who decided that a personal injury claim had been brought within time, notwithstanding that the proceedings had been issued more than ten years after the injury in question had been suffered. The appeal mainly concerns the proper approach to the meaning and application of section 14(2) of the Limitation Act 1980 (“the 1980 Act”). All references to sections in this judgment are, save where the contrary is stated, to sections of that Act.

The factual history

[2]The claimant, Jason Stuart McCoubrey, was born in July 1975, and joined the Army in 1991. He served with the First Regiment of the Duke of Wellington until 1996, when he joined the Royal Military Police.[3]On 15 October 1993, he was engaged on a training exercise on Salisbury Plain, and was ordered to defend his position against a simulated attack. His case is that a non-commissioned officer threw a thunderflash into his trench, and that it exploded about a metre away from the claimant, stunning him and causing ringing in his ears.[4]Within a day or two, the claimant noticed that the hearing in his left ear had deteriorated, and had become significantly worse than that in his right ear. This was particularly noticeable when he was listening to his personal stereo system. Pursuant to requests from the claimant, he was given a total of three medical examinations in October and November 1993. The contemporaneous medical notes indicate that the claimant was reporting “muffled” hearing in his left ear, and they record him as suffering from deafness, tinnitus, and pain in the left ear. He was referred to an ENT consultant, who saw him in March 1994, and recorded that he suffered from marked sensorineural hearing loss.[5]The claimant was then referred for an MRI scan to investigate the cause of this, but that did not happen, as he was deployed to Bosnia. However, he had audiograms every two or three years. These audiograms showed that the damage to the claimant’s hearing in his left ear remained pretty consistent, neither significantly deteriorating nor improving. However, the impairment to the claimant’s hearing does not seem to have harmed his military career, at least until 2001.[6]In August 2001, following an audiogram, the claimant was referred to another ENT consultant, who recommended a temporary downgrading of his status, and an occupational assessment. At that time, the claimant was serving in Northern Ireland, and, as a result of the downgrading, he was not permitted to travel in helicopters or to fire a rifle, and he was advised to wear double protection for his ears. By February 2002, as a result of this, the claimant was recorded as feeling frustrated and that “his career [was] at a standstill”.[7]Despite this, he subsequently trained with his unit for deployment to Iraq. Nonetheless, in early 2003 he was more formally downgraded (albeit for twelve months), and he was informed by his colonel that he would not be deployed in Iraq with his unit. His colonel also told him that he was likely to be permanently excluded from active service. He was thus led to believe that his Army career would probably be permanently blighted as a result of his hearing impairment.[8]The claimant consulted solicitors in April 2003. On 21 July 2004, they issued the present proceedings seeking damages from the defendant, the Ministry of Defence, as the claimant’s employer, for the injury to his hearing. Shortly thereafter, on the advice of those solicitors, the claimant saw a consultant, Dr Yeoh, who recorded that he suffered from significant loss of hearing in the left ear, as a result of the thunderflash incident. Dr Yeoh also recorded, from the claimant’s statements and from his own observations, that the impairment to the claimant’s hearing and other symptoms had remained substantially unchanged since October 1993.[9]In its Defence, served on 10 January 2005, the defendant denied liability and quantum, and raised an allegation of contributory negligence. Most importantly for present purposes, the Defence raised a contention that the proceedings had been brought too late. In effect, it was the Defendant’s case that these proceedings should have been brought within three years of the thunderflash incident, i.e. by 15 October 1996, by virtue of section 11(4)(a). This was the issue which came before Judge Cox, sitting in the Medway District Registry of the High Court. In order to appreciate the issues on this appeal, it is necessary, first, to refer in a little detail to sections 11, 14 and 33 of the 1980 Act.

The Limitation Act 1980

[10]By virtue of subsection (1), section 11 applies to claims brought in “negligence … or breach of duty”, where the damages sought “consist of or include damages in respect of personal injuries”. In such cases, albeit subject to certain exceptions, proceedings must be brought, according to section 11(4), within:
“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.” (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured.”
[11]It is common ground that the date identified by section 11(4)(a) in the present case is 15 October 1996, and the claimant accordingly relies on section 11(4)(b). The effect of that provision is expanded by section 14, which is in the following terms so far as relevant:
“(1) …[I]n section.. 11…references to a person’s date of knowledge are references to the date on which he first had knowledge…(a) that the injury in question was significant….. (2) …[A]n 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) …[A] person’s knowledge includes knowledge which he might reasonably have been expected to acquire…from facts observable or ascertainable by him, or…from facts ascertainable by him with the help of…appropriate expert advice which it is reasonable for him to seek….”
[12]Section 33(1) enables the court to permit a claim for damages for personal injuries to proceed, even if brought outside the period permitted by section 11(4), if it would be “equitable” to do so. Equity, in this connection is to be assessed by balancing the prejudice to the claimant if section 11(4) applies with the prejudice to the defendant if that section is disapplied pursuant to the court’s power under section 33(1). By virtue of section 33(3), the court, when considering whether to exercise its power under section 33(1), must “have regard to all the circumstances of the case”, including six specific factors, which need not be identified for present purposes.[13]It is also appropriate to refer to the definition of “personal injuries” in section 38(1). The definition is in these terms:
“’Personal Injuries’ includes any disease and any impairment of a person’s physical or mental condition, and ‘injury’ and cognate expressions shall be construed accordingly.”
[14]In the light of these statutory provisions, it is (not surprisingly) common ground that the claimant, in common with any other party who contends that he has suffered a personal injury, can, at least in principle, rely on two different statutory provisions for bringing his claim outside the three year period specified in section 11(4)(a) (“the three year period”). First, he can rely on section 11(4)(b) (as expanded by section 14); secondly, he can rely on section 33. The claimant in this case sought to rely on both sets of provisions.[15]There is an important difference of principle between the two sets of provisions. If a claimant can bring himself within section 11(4)(b), then he can start his claim outside the three year period as of right: no question of any discretion or balancing exercise arises. However, if a claimant relies upon section 33, the court has to carry out a balancing exercise in order to decide whether it is “equitable” to permit his claim to be brought outside the three year period.

The hearing and decision below

[16]Following a two day preliminary hearing on the limitation issue, during which she heard evidence from (among others) the claimant and his wife, Judge Cox gave a full and considered ex tempore judgment on 17 March 2006. In that judgment, she held that the claimant could rely on section 11(4)(b), and that she would not therefore rule on his alternative case under section 33.[17]In his evidence, which the Judge accepted, the claimant said that, although between 1994 and 2000, people had told him from time to time that he should see a specialist, he had not done so, partly because his hearing problem did not seem to affect his career and partly because he was “never made available for an appointment”. However, in 2001, once he had been temporarily downgraded, and restricted in his activities, he realised that the problem would affect his career. This was confirmed by what he was told by his colonel in 2003, which was, in the Judge’s words, “a terrible shock to him”. It not only severely affected his career, but also his self-esteem.[18]The Judge analysed the facts in some detail, and considered the then relevant authorities, especially two decisions of this court, McCafferty –v- The Receiver of the Metropolitan Police [1977] 1 WLR 1073 and Dobbie –v- Medway Health Authority [1994] 1 WLR 1234.[19]At paragraph [88] of her judgment, the Judge accepted the proposition that “in evaluating the seriousness of the injury, the court must look not only at the severity of the injury itself, but also the effect of the injury on the claimant’s quality of life, his activities, his enjoyment, and his ability to carry out his trade, skill or profession”. At paragraph [96], she said that, “while the claimant suffered a serious injury to his hearing in October 1993”, “the effect on [his] quality of life was… at that time insignificant”. This was, she explained, because it “did not impinge upon his ability to enjoy life, nor did it impede his active participation in his chosen career”. In that connection, she described the claimant as “a born soldier” who had “found his niche” and enjoyed “a fully active and satisfying career” in the Army.[20]The Judge explained in paragraph [98] that “the effect of the injury did not have a significant impact upon the claimant until his employers restricted his activities in his career”, and namely in 2001.[21]In paragraphs [99] to [101],

the Judge said this:

“99. I accept that, because of his training, the claimant would have known, from a date prior to October 1993, that impairment to his hearing had the potential to restrict his participation in active service. However, this was not the claimant’s experience in reality… [T]he Army did not restrict his participation in any aspect of his service until August 2001… 100. I find the claimant was entitled to rely upon the Army’s apparent unconcern about the claimant’s hearing loss. I find that the claimant was reasonable in not regarding his injury as sufficiently serious to justify instituting proceedings for damages in the light of his employer giving the claimant reason to believe that this hearing defect was not sufficiently serious to exclude him from active service. 101. I find the claimant was reasonable in his belief until 9 August 2001. In respect of this, I rely on Mrs McCoubrey’s statement, and also the claimant’s own statement to his medical examiner in June 2001, when he said that his hearing defect “did not bother him on a daily basis”
. This was, of course, directly before he had the occupational assessment which led him to the downgrade in his medical clearance on 9 August 2001”.

The case law on section 14(2)

[22]The McCafferty case was concerned with sections 2A and 2D of the Limitation Act 1939, which were the statutory predecessors of, and for present purposes indistinguishable from, sections 11, 14 and 33.[23]In relation to section 2A(7) of the 1939 Act, the equivalent of section 14(2), Geoffrey Lane LJ (whose reasoning was consistent with that of Megaw LJ) said this at pages 1081G to 1082A:
“[I]t is clear that the test is partly a subjective test, namely: "would this plaintiff have considered the injury sufficiently serious?" and partly an objective test, namely: "would he have been reasonable if he did not regard it as sufficiently serious?" It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages? I do not consider that it is permissible under this section to look into such problems as whether it would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job. Such considerations arise, if at all, under the new section 2D.”
[24]In the Dobbie case, section 14(2) gave “rise to no issue” – see at 124A at D. However, Sir Thomas Bingham MR (with whose judgment Steyn LJ expressly agreed) said this at pages 1241H to 1242A:
“The requirement that the injury of which a plaintiff has knowledge should be "significant" is in my view directed solely to the quantum of the injury and not to the plaintiff's evaluation of its cause, nature or usualness. Time does not run against a plaintiff, even if he is aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about. It is otherwise if the injury is reasonably to be considered as sufficiently serious within the statutory definition: time then runs (subject to the requirement of attributability) even if the plaintiff believes the injury to be normal or properly caused.”
[25]More recently, there have been two important decisions of this court on section 14(2), and one important decision of the House of Lords on section 14(3). In each of the cases in this court, the claimant, who had allegedly been subject to sexual abuse when a child, sought to bring proceedings more than three years after he had achieved the age of majority (the age of majority being when time under section 11(4) would start to run).[26]In KR –v- Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, [2003] QB 1441, Auld LJ (giving the judgment of the court) referred to the Dobbie and McCafferty cases, and explained that the test to be applied under section 14(2) was “partly subjective” (see paragraphs. [33] to [37]). In paragraph [40], he mentioned that “section 14(2) was designed principally to provide for cases of late diagnosis of physical diseases, such asbestosis or byssinosis, the deadly development of which may be unknown until their symptoms eventually appear.” He then went on to observe that the section “does not fit so readily the circumstances of abused children who, because of their immaturity and vulnerable position might never consider and seek advice about suing their abusers”.[27]Auld LJ then explained in paragraph [47] that, in any such case, the trial judge, when considering the applicability of section 14(2), would have to take into account the claimant’s “individual history and circumstances, the nature severity and duration of the abuse, the period of time when it occurred and its physical and/or mental effects evident to the claimant”. The judge would then have “to relate them all to the question whether the claimant, given those and any other relevant circumstances, would have considered the injury… sufficiently serious to institute proceedings against a solvent compliant defendant”.[28]In Catholic Care (Diocese of Leeds) –v- Young [2006] EWCA Civ 1534, this court came to the conclusion that the approach adopted to section 14(2) in the Bryn Alyn case could not sensibly survive intact as a result of the reasoning of the House of Lords in Adams –v- Bracknell Forrest BC [2004] UKHL 29, [2005] 1 AC 76. Although the Adams case was concerned with section 14(3), whereas the Bryn Alyn case, like the Young case and the instant case, was concerned with section 14(2), the court in the Young case considered that logic and consistency required the same approach to be adopted to both sub-sections of section 14 - see paragraph [45] in the judgment of Dyson LJ in the Young case.[29]In paragraph [33] in the Adams case, after pointing out that the word “reasonable” was to be found three times in section 14(3), Lord Hoffmann observed that “the word is generally used in the law to import an objective standard” but that “the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question”. As he explained it, “the breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports and objective standard”.[30]In paragraph [44], Lord Hoffmann quoted an observation of Evans LJ in Forbes –v- Wandsworth Health Authority [1997] QB 402 at 422:
“Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally…”
Lord Hoffmann described this in the following paragraph as “persuasive”, saying that it was “possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended.” He therefore went on to reject dicta in earlier cases, which suggested that the test under section 14(3) should be subjective. In paragraph [47], he said that he did “not see how [the claimant’s] particular character or intelligence can be relevant.”[31](He identified one exception to this principle, which is not relevant for present purposes. It arises where the condition or injury on which the claimant’s case is based has relevantly affected the claimant’s character or intelligence. In such a case, his intelligence or character can, to that extent, be taken into account. However, that is consistent with the notion that the section 14(3) issue is to be determined by reference to a person who suffers from the condition or injury in question – see paragraph [49] in the Adams case and paragraphs [48] and [49] in the Young case).[32]In a short speech in the Adams case, Lord Phillips of Worth Maltravers agreed with Lord Hoffmann, saying, in paragraph [58], that, when considering whether a claimant can rely on section 14(3), one should “not have regard to aspects of character or intelligence which are peculiar to the claimant”.[33]Lord Scott of Foscote took the same view in the Adams case. In paragraph [71], he said that the “knowledge which he might reasonably have been expected to acquire” in section 14(3) should be taken as:
“[A] reference to knowledge which a person in the situation of the claimant, i.e. an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test.”
[34]Lord Walker of Gestingthorpe and Baroness Hale of Richmond arguably took slightly different views in the Adams case, and, like the Court of Appeal in the Young case (see paragraph [41]), it seems to me appropriate to take the ratio of the Adams case from the first three speeches.[35]The effect of the Adams case was summarised by Dyson LJ in paragraph [41] of the Young case in these terms:
“[T]he claimant is to be assumed to be a person who has suffered the injury in question, but in all other respects he is to be assumed simply to be a reasonable person. In determining whether a claimant had knowledge which he might reasonably be expected to acquire, the court has to consider how a reasonable person in the situation of the claimant would have acted, save that… aspects of character or intelligence peculiar to the claimant are to be disregarded. On the other hand, if the injury affects the claimant's ability to acquire knowledge or to seek expert advice, these are matters that can be taken into account. But in all other respects, the claimant is to be regarded simply as a reasonable person. Thus, his personal characteristics, such as shyness, embarrassment, his intelligence and his general circumstances are irrelevant so far as section 14(3) is concerned.”
[36]As Dyson LJ went on to say in paragraphs [44] and [45], Auld LJ in Bryn Alyn clearly enunciated a substantially subjective test (which was “not surprising in view of the test stated in McCafferty…”), but this could no longer stand in the light of the reasoning in the Adams case. He said that the two subsections of section 14 must both involve the same objective test. Sir Peter Gibson agreed. Buxton LJ expressed substantially the same views – see his conclusions at paragraphs [80] to [82]; at paragraph [87], he did express doubts (which I share) as to whether Auld LJ’s approach in the Bryn Alyn case was consistent with what Sir Thomas Bingham had said in the Dobbie case.

The proper approach to section 14(2)

[37]There are three points which arise on this appeal in relation to the proper approach to adopt to section 14(2).[38]First, as appears to be agreed between the parties (plainly rightly in my opinion), the decisions in the Adams and Young cases mean that the law as it had been previously understood and applied, at least in the Bryn Alyn case, purportedly following in particular the McCafferty case, has changed. The test under section 14(2) is substantially objective, and is not the mixture of subjective and objective in the way in which the analysis of Geoffrey Lane LJ in the McCafferty case was interpreted as indicating in a number of cases, culminating with the Bryn Alyn case.[39]Secondly, in my judgment, the question of whether an injury is “significant” within section 14(1)(a), as expanded in section 14(2), must 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 private life or career.[40]That seems to me to follow from the way section 14(2) is expressed. As Ward LJ pointed out during argument, section 14(2) is concerned with the question of whether a person in the claimant’s position “would reasonably have considered [the injury] sufficiently serious to justify his instituting proceedings…”, and the injury is effectively defined in section 38(1). In other words, what section 14(2) is directed at is whether the claimant ought reasonably to have appreciated that his injury was serious. The effect of the injury on the claimant’s private life or his career prospects does not impinge on the issue of whether the injury itself was “sufficiently serious”: it bears on the effect of the injury on the claimant’s career.[41]On behalf of the defendant, Ms Ruth Downing fastens on the word “significant” in section 14(1)(a), contending that this justifies what one might characterise as a broader approach, such as that adopted by the Judge here. In my opinion, that will not do. The word “significant” is simply the verbal peg upon which section 14(2) is hung: what is “significant” is to be determined by what would reasonably have been regarded as “serious”. As discussed above, the section concentrates on the injury.[42]The reasoning in the Young and Adams cases appears to me to reinforce that conclusion. In the Young case, Dyson LJ, in paragraph [47], quoted from the passage cited above in the judgment of Sir Thomas Bingham in the Dobbie case with approval, but added that it was subject to one exception, namely that mentioned in paragraph [31] above. In paragraph [48], he said that section 14(2) was “directed to the question whether the litigation is reasonably justified by reason of the seriousness of the injury” (emphasis added), a point he repeated in the next paragraph, accepting that this gave section 14(2) a comparatively narrow ambit, consistently with what was suggested in paragraphs [44] and [45] in the Adams case.[43]This conclusion also appears to be confirmed by the views expressed by Buxton LJ at paragraphs [86] and [87] in the Young case. In the former paragraph, he said that “the level of injury contemplated” by section 14(2) was “by no means high”. He also emphasised the word “justify” in section 14(2), which he said “can only be intended to assess the nature, amount and circumstances of the claim, and not the nature and circumstances of the claimant”. In paragraph [87], Buxton LJ explained that this conclusion was consistent, in his view with what had been said in the Dobbie case by Sir Thomas Bingham.[44]This means that section 14(2) has a comparatively limited application, rather than the wider application which it would have if the Judge’s reasoning here and of this court in the BrynAlyn case was correct. I consider that that serves to support, rather than to undermine, my conclusion. First, the purpose of section 14(2) was as described by Auld LJ in paragraph [40] of the BrynAlyn case (reflecting indeed what Bingham LJ said in the Dobbie case). It was enacted to extend the limitation period for victims of personal injury who were effectively unaware that they had been injured at all or who were aware that they had suffered an injury, which they reasonably to be very mild indeed, but which subsequently turned out to be very serious. It would be surprising if a provision, introduced for that purpose, could have as wide an application as would be the case if the Judge’s reasoning here and this court’s reasoning in the Bryn Alyn case was correct.[45]Further, there is the inter-relationship between sections 11 and 14 and section 33, discussed by Lord Hoffmann in the Adams case. Given that a claimant who can successfully invoke sections 11(1)(b) and 14 is able to extend his limitation period, possibly by many years (as this case shows) as of right, it seems to me that it should be relatively narrowly construed, bearing in mind that such a claimant will always have the possibility of a fall-back position in the form of section 33. Further, section 33, unlike sections 11 and 14, enables the Court to carry out a balancing exercise in cases where the claim would be “stale” from the point of view of the defendant.[46]Additionally, as Mr Robin Tam QC, who appears for the defendant, says, it seems unlikely to have been the intention of the legislature that there would be many cases where both the section 14 and the section 33 gateways would available to a claimant seeking to bring proceedings outside the three year period. The facts of the present case provide a good example: if the Judge was right, and section 14 can be invoked on the instant facts, then the claimant would also have had the section 33 gateway available to him - subject of course to the court’s discretion. While it would plainly be wrong to suggest that there will not be cases where the two gateways could be open to a claimant, I would have thought that a construction of section 14 which minimises the number of cases would be more likely be correct than one which carried with it the implication of many such cases.[47]Given that the issue raised by section 14(2) is to be determined by reference to what a reasonable person who has suffered the particular injury would consider, the third issue which has been raised before us is that identified by Lord Hoffmann in paragraph [33] in the Adams case. The point involves identifying the assumptions that one makes about the reasonable person for the purposes of section 14(2), apart from the fact that he has suffered the injury in question. Does one assume merely that he is a hypothetical reasonable person who has suffered the relevant injury or condition, as Mr Tam says, or does one also assume, as Ms Downing argues, that he is in the same objective circumstances as the actual claimant?[48]Before trying to resolve this question, it is fair to say that, at least as it currently strikes me, this issue is unlikely to make any difference in the vast majority of cases, given the essentially limited and objective nature of the enquiry as discussed in paragraphs [38] to [46] above. It certainly makes no difference to the outcome of this appeal. However, it is conceivable that there could be cases involving section 14(2) where the outcome could be affected by the answer to this question.[49]In support of his contention, Mr Tam refers to what Dyson LJ said in paragraph [41] in the Young case, and in particular the statements that the person contemplated by section 14(2) “is to be assumed to be a person who has suffered the injury in question, but in all other respects he is to be assumed simply to be a reasonable person”, and the claimant’s “general circumstances are irrelevant”. He also relies on what Buxton LJ said in the same case.[50]While appreciating the force of Mr Tam’s submission, I have come to the conclusion that it should be rejected. In my judgment, the person contemplated by sections 14(2) and 14(3) is a person who is in the same position, in objective terms, as the claimant. Thus, in the present case, he would be a serving soldier aged 18 at the time that he suffered the injury. While I accept that the test is objective, in light of the reasoning in the Young case, it seems to me that that of itself does not prevent the objective circumstances of the claimant (as opposed to his character, intelligence, ambitions etc, all of which can fairly be characterised as subjective) being taken into account.[51]While sections 14(2) and 14(3) concentrate on what is reasonable, and import an objective approach, they do refer to the person who has suffered the injury, which tends to suggest that the particular circumstances in which the claimant finds himself could at least be potentially relevant. Further, it appears to me that, in some (admittedly pretty rare, I suspect) circumstances, it may be difficult to identify what would be reasonable in relation to a person’s reaction to a particular injury, unless one makes assumptions as to the objective circumstances in which that person finds himself. Read as a whole. I do not consider that what Dyson LJ said in paragraph [41] in the Young case is determinative of this issue either way. In the speeches of the three members of the House of Lords in the Adams case, on which I have relied, the objective circumstances in which the particular claimant finds himself are either not specifically excluded (see paragraphs [47] and [57]) or appear to be specifically included (see paragraph [71]).[52]Accordingly, it appears to me that the proper approach to the question raised by section 14(2) is to consider, on the hypothesis postulated by the section, 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 intelligence aspirations aggressiveness and the like.

Conclusions on section 14(2) in this appeal

[53]In these circumstances, therefore, it seems clear that the Judge, through no fault of her own (because the Young case had been decided, and the Adams case was, perhaps not surprisingly, not cited to her), approached the issue before her wrongly. She took into account this particular claimant’s internal reasons for not pursuing, or even contemplating, a claim against the defendant in or shortly after 1993, whereas such subjective factors should have been excluded as a result of the reasoning in the Adams and Young cases.[54]The question the Judge should have asked herself was whether a reasonable person in the claimant’s position, and with his knowledge of the injury, would, on the hypothesis postulated by section 14(2), have considered the injury sufficiently serious to justify the institution of proceedings by February 1994 at the latest. Had the Judge asked herself that question it could, in my opinion, only have admitted of one answer, namely that the claimant could not bring himself within section 14(2).[55]First, he was plainly aware, from his own personal experience, of the nature and extent of the damage to his hearing within a day or two of the injury occurring. Secondly, thanks to the three medical assessments which he had in late 1993 and the one assessment in early 1994, he was, within six months of the injury at the absolute outside, aware of the medical diagnosis, loss of hearing, tinnitus and pain, all of which confirmed his own experience. Thirdly, ever since he had suffered the injury, it had not got any worse. In other words, in terms of the cause, nature, and extent of the injury, the claimant had been as aware and as well informed by early 1994 (at the latest) as he was at all times thereafter.[56]In my judgment, that is really the beginning and the end of this appeal, subject to the section 33 issue. It was inappropriate for the Judge to have taken into account the claimant’s subjective attitude to the effect of the injury: she should have concentrated on what he knew of the injury itself. The essential issue concerned the perceived seriousness of the injury, whereas the Judge concentrated on the seriousness of the consequences of the injury, in terms of the claimant’s career prospects in the Army. Further, the issue raise by section 14(2) is to be judged from the point of view of a reasonable person in the claimant’s position, not, as the Judge thought, that of the claimant himself.[57]For the reasons discussed above, the fact that the injury, caused in 1993, did not result in any setback in the claimant’s career until 2001 was not an appropriate reason for holding that time did not start running under section 11(1)(b) until 2001. Although it is easier to see how the Judge took that view in the light of the McCafferty case, I must admit to having difficulties about her conclusion even on the law as it appears to have been understood at the time (as explained in the Bryn Alyn case). Whether that is right or not, it seems to me clear that the decision below cannot stand following the reasoning and conclusion of this court in the Young case.[58]The claimant had all the information he needed about the injury by February 1994 at the latest. The fact that this is the vital point appears to me to be established by the reasoning in the Young case, especially at paragraphs [47] to [49] and [86] and [87]. However, as already mentioned, it seems to me that it is also supported by what Sir Thomas Bingham said in the Dobbie case at 1241H to 1242A, and, indeed, even by the observation I have quoted from paragraph [40] in the Bryn Alyn case[59]The sole thing that changed between February 1994 and August 2001 was that it was only at the latter date that the claimant became aware of the fact that the injury would detrimentally affect his career in the Army. As a matter of ordinary language, in the light of the authorities, and bearing in mind the other provisions of the 1980 Act (and even on the approach the Judge adopted), such a factor did not justify the conclusion reached by the Judge.[60]Finally, even if one could take into account the claimant’s state of mind and aspirations, it seems to me that the Judge’s analysis was flawed. In this connection, it appears to me that the vital point is the Judge’s finding that the claimant would have been well aware from the outset that the problem with his hearing, which he appreciated from the outset, could well detrimentally interfere with his career in the army. Even on the assumption that the Judge was correct in principle, and one could take into account his state of mind in this connection, it appears to me that section 14(2) could not be invoked by someone who, knowing from the beginning that the injury might affect his career, nonetheless waits to claim until it does appear to affect his career.[61]In all these circumstances, I would allow this appeal on the basis that, as a matter of law, the requirements of section 14(2) were not satisfied, and the Judge ought not to have held that the claimant had brought the proceedings in time under section 11(4).

Disposal of the appeal

[62]That is not the end of this appeal, because, of course, the claimant had an alternative argument based on section 33 which (as it turns out, unfortunately) the Judge did not deal with. We were invited to deal with that argument ourselves, on the basis that all the evidence was available and we were therefore in as good a position as the Judge to determine it. We decided that it was an inappropriate course.[63]The Court of Appeal obviously has power to make findings that the first instance Judge could have made, but did not make. However, it is a power which should be exercised cautiously, because the primary division of functions is such that it is for the trial Judge is to make the initial findings, carry out any balancing exercise, and perform any discretion, and for the appellate court to exercise a supervisory jurisdiction over those functions when carried out. Sometimes, the function in question will be sufficiently simple, or the answer sufficiently clear for the appellate court to perform it.[64]However, where the issues are complicated and inter-related, that is not normally an appropriate course to take. It seems to me that this is such a case, and, unfortunate though it may be in terms of cost and time, this is a matter that should go back to the Judge in order for her to decide whether to exercise her discretion in favour of the claimant under section 33. Even if we had been otherwise minded to hear the section 33 application, it would probably have been a difficult decision to justify, because the defendant has put in further evidence which, as we understood it, the claimant had not really had a proper chance to consider.[65]In all these circumstances, I would allow this appeal, and remit to the trial Judge the section 33 issue. If Judge Cox is for some reason unavailable, then, provided that the parties agree or she is prepared to release the case, it can be heard by another Judge. However at least on the basis of what I currently know, and subject to practicalities, and indeed subject to any submissions by the parties, it seems to me to be desirable that it be heard by Judge Cox. Mr Justice Tugendhat:[66]I agree.

Lord Justice Ward:

[67]I also agree.

Cited in 1 later judgment