White v EON & Ors [2008] EWCA Civ 1463

Case No B3/2008/0579[2008] EWCA Civ 1463
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE INGLIS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 26 th November 2008
Before
LORD JUSTICE TUCKEYLORD JUSTICE JACOBSIR WILLIAM ALDOUS
Between
WHITEAppellantEON & ORSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms F White (instructed by Messrs BBH) appeared for Appellant.Ms J Adams (instructed by Messrs Berrymans Lace Mawer) appeared for Respondent.
Judgment
[1]This is an appeal from a judgment of HHJ Inglis given in the Nottingham County Court, in which he found that the claimant’s claim for personal injuries against the third defendant was time-barred. Damages were claimed against the three defendants for whom the claimant worked successfully between 1962 and 1996 for Vibration White Finger and Carpal Tunnel Syndrome caused by exposure to excessive levels of vibration from tools which he used in his job as a lightning conductor fitter.[2]Proceedings were issued on 19 July 2006. The first and third defendants raised limitation defences which were ordered to be tried as a preliminary issue. The claim against the first defendant was settled during the course of that trial.[3]The limitation period for such claims is three years from the date on which the cause of action accrued, or the date of knowledge, whichever is later. Section 14 of the Limitation Act 1980 says:
“(1) …references to a person’s date of knowledge are references to the dates on which he first had knowledge (a) that the injury in question was significant; and (b) that the injury was attributable to … negligence… or breach of duty; and (c) of the identity of the Defendant … (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.”
[4]It was the claimant’s case that his date of knowledge was in the summer of 2003 when he saw an advertisement by a claims company which described his symptoms and suggested that he might have a claim. It was the defendant’s case that the date of knowledge was much earlier. The judge found that the claimant knew that the injury he had suffered was significant and there is no challenge to this finding. He went on to find that the claimant did not actually know that it was attributable to negligence or breach of duty before 2003 but found that he had constructive knowledge (as defined by Section 14(3)) by the time he left the third defendant’s employment at the end of 1996. He said:
“I think that at the latest, by the time that he left the employment of the third defendant it was reasonable to have expected the claimant to have sought, and clearly sought medical advice about this combination of symptoms. And I think that on balance that that combination of symptoms being discussed with the doctor for the purpose of receiving advice, would have resulted in the facts being revealed by that time, even as maybe the doctor would have sought specialist advice.”
In other words, the judge’s conclusion was that the medical advice which the claimant ought to have sought would have made the necessary link between the symptoms from which the claimant was suffering and the use of vibrating tools in the course of his employments with the defendants, whose identity he knew.[5]This conclusion meant that the claim was out of time. The judge then went on to refuse to disapply the limitation period under Section 33 of the Act. Permission to appeal against that part of his decision has been refused.[6]The appeal against the finding of constructive knowledge is made on the grounds that the judge applied too stringent a test; he was not justified in taking the end of 1996 as the date of knowledge and attached too little weight to the claimant’s evidence that he had complained about his symptoms to his GP.[7]The claimant gave evidence at the trial. It is clear from his cross-examination and from the judge’s observations that he was not a very clear or accurate historian, although the judge made it clear that he did not find that the defendant had in any way attempted to mislead the court. The judge accepted the appellant’s account of his symptoms given to his vascular surgeon, Mr Noel Wilson, in September 2004. It is clear that the judge thought that this was the most accurate account given, as it was, several years before trial. It says:
“Symptoms started in the 1980s. Mr White described these as tingling in the fingers, especially when they were cold. The finger tips went white. He described an odd sensation of feeling throbbing in the fingers especially in the morning and a symptom akin to the sensation of having knocked the fingers with a hammer and the intense throbbing and discomfort that ensues. […] the right hand [was] affected more than the left. […] all fingers in the right hand [were] affected but not the thumb. In the left hand, the thumb [was] spared as was the little finger. Attacks of whiteness only occur in the cold and winter seasons. They are confined to the tips of the fingers […] Symptoms of tingling occur at any time as do symptoms of numbness and are no different in either summer or winter months. [… the] symptoms have remained static in the last seven years [that is the seven years before September 2004]. The symptoms he described caused him difficulty with fine finger movements, the fastening of buttons and picking up small objects [...]. He had not sought any medical advice at the time of the symptoms’ presentation. ”
[8]Mr Wilson was asked to classify the claimant’s symptoms on the Stockholm Workshop scale -- an international measure of the seriousness of Vibration White Finger. The claimant’s condition had only reached stage one on the vascular scale but was stage three on the sensorineural scale (“intermittent or persistent numbness, reducing tactile discrimination and/or manipulative dexterity”) which the judge described as “significant”.[9]In his oral evidence the claimant said that his symptoms had got worse after he stopped work for the third defendants in 1996 and started work as a taxi driver. He also said that “about twice” he had mentioned that he had tingling and numbness in his fingers to his GP, who had said this might be due to poor circulation.[10]Relying on what the claimant told Mr Wilson, the judge did not accept the evidence that the claimant’s symptoms had got worse after he left his employment with the third defendants in 1996. His GP’s notes, which were extensive, made no reference to symptoms in the hands. The judge said “11. It is possible that he mentioned the tingling to the doctor but I find that he did not mention these symptoms in circumstances or in detail as a matter of complaint as would be expected to lead the doctor to investigate any particular condition. Indeed the claimant does not claim that he really did so mention it, and there is reference to the matter in Dr Wilson’s report that certainly does not suggest that anything like a proper request for the doctor to consider these symptoms was ever made.” That is a reference to Mr Wilson’s report where, as I have said, the claimant is reported to have said that he did not seek any medical advice. If he had sought medical advice in a way which had brought it to the doctor’s attention, the judge’s view was:
“10. I think that a report to the GP of this combination of symptoms, including difficulty in handling small objects, would in the 1990s have been noted, and at the very least resulted on the balance of probabilities in an investigation that within a few months, would have revealed the nature of the condition and its cause.”
So, on the basis of these findings

the judge concluded:

“14. I do think that in disease cases it is easy to apply a test that is more stringent than is reasonable and I have that well in mind, but here are a combination of significant symptoms. By the middle of the 1990s is the latest as I find, including a sensorineural component of significance, that it was reasonable to expect someone in the claimant’s position to seek his doctor’s advice about. I do not think it was an objectively reasonable response not to seek advice before 2003 when he saw the advertisement”
[11]As is apparent from the passage which I have just quoted and the passage which I first quoted from the judge’s judgment, the question the judge asked himself was whether, having regard to the symptoms which the claimant was experiencing by the end of 1996, it was reasonable to expect him to have sought specific advice about them from his doctor. It is not suggested that this was the wrong question. Nor could it have been, since it was based on decisions of the House of Lords, Adams v BracknellForestBorough Council |2004| UKHL 29; |2005| 1 AC 76.[12]What Ms Ashworth for the claimant argues is, as I have said, that the judge applied too stringent a test. On analysis, this amounts to no more than saying that the judge set too high a standard of what was reasonable. But it was for the judge to say what was or was not reasonable for the claimant to do in the circumstances of this case. His finding that it was reasonable for the claimant to have sought specific medical advice was a finding of fact which was clearly open to him on the evidence. This is the sort of finding by a trial judge with which this court should not readily disagree, although I should say that in this case I agree with it.[13]Ms Ashworth argues that it was illogical for the judge to have found constructive knowledge by the end of 1996, when he found no such knowledge earlier and had accepted that the claimant put his symptoms down to wear and tear. What, she asks, changed in 1996 to justify this conclusion, and where are the judge’s reasons for it? But the judge’s finding, as the passages which I have quoted show, was that the end of 1996 was the latest time by which medical advice should have been sought. By that time “a significant combination of symptoms” had developed which did not deteriorate in the following seven years. The reason for taking the end of 1996 was therefore obvious and, I think, logical.[14]Ms Ashworth criticises the judge’s findings about what the claimant may or may not have said about his symptoms to his GP, but, in the passages to which I have referred, the judge dealt with this point entirely satisfactorily. The absence of any GP’s note and what the claimant told Mr Wilson were fatal to this part of his case.[15]All in all, for the reasons I have given, despite the able way in which they were presented to us this morning, I do not think there is anything in Ms Ashworth’s criticisms of this judgment and I would therefore dismiss the appeal.[16]I agree.

Sir William Aldous:

[17]I also agree.

Order

Appeal dismissed

Cited in 1 later judgment