Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401

Case No B3/2013/3797[2014] EWCA Civ 1401
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
HH JUDGE HALBERT
11R54438
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 31 st October 2014
Before
LORD JUSTICE JACKSONLADY JUSTICE SHARPLORD JUSTICE VOS
Between
HOWARD PLATTClaimant/BRB (RESIDUARY) LIMITEDDefendant/
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Patrick Limb QC (instructed by DWF LLP) for Appellant/DefendantMr Simon Mallett (instructed by Wixted & Co) for Respondent/ClaimantHearing Hearing date: 15th October 2014
Judgment
[1]Mr Howard Platt (“Mr Platt”), who is now 76 years old, has recently brought a personal injury claim in respect of damage to his hearing against his former employers, BRB (Residuary) Limited (“BRB”). Mr Platt worked for what was more commonly known as British Rail at the Crewe Locomotive Works for some 35 years between 1953 and 1988, save for a 2-year break between 1961 and 1963 when he served in the Royal Air Force. The judge described his working conditions as a “very noisy environment”.[2]The central question in this case is whether Mr Platt was affected in or around 1997 by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to acts or omissions alleged to amount to BRB’s negligence. If Mr Platt was affected by such constructive knowledge, his personal injury claim will be statute barred under sections 11(4) and 14 of the Limitation Act 1980 (the “1980 Act”). If not, as the judge found he was not, he will be able to proceed with his claim notwithstanding that it relates to events that occurred more than 25 years ago. It is obvious that claims of that vintage are hard for an employer to defend as records will have been lost, witnesses will be untraceable or worse, and memories will anyway have faded.[3]In the briefest of outline, Mr Platt began complaining to his General Practitioner about his hearing in 1982. Between then and 2011, he consulted various doctors about ear problems of one kind or another on 12 separate occasions, but it was not until 2011 that he was told expressly that part of his hearing loss was noise induced. That was after he had read a newspaper advertisement about noise induced hearing loss. Most significantly, Mr Platt complained to his GP about tinnitus and hearing loss in his right ear in 1997, and was referred to a specialist Ear Nose and Throat (“ENT”) Registrar. He was asked by that doctor whether he had worked in a noisy environment, to which he replied that he had. But Mr Platt did not ask him on that occasion whether his problems were noise induced, and the doctor did not volunteer that information.[4]The matter was tried by HH Judge Halbert, who gave judgment on 21st November 2013. He held that Mr Platt did not have actual knowledge that there was a real possibility that his hearing loss was noise induced until he read a newspaper article in 2010, less than 3 years before he issued proceedings. In respect of constructive knowledge, the judge held that he should apply an objective test, and that a reasonable man of Mr Platt’s age would be curious as to the cause of his deafness. Nonetheless, he concluded that Mr Platt was not affected by constructive knowledge of the cause, because “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”. In short, the judge held that, in all the circumstances of this case, it was not reasonable to have expected Mr Platt specifically to ask his ENT doctor about the cause of his tinnitus and deafness in 1997 (or, by implication, at any time before 2010). The judge granted BRB permission to appeal because “there was a lack of clear authority as to the extent to which a Claimant who seeks medical advice is expected to question the doctors when no cause for his condition is given”.[5]The judge considered the three important authorities available at the time of the trial, and we have been referred also to another Court of Appeal judgment on the point that was handed down since then. I will return to deal with these cases, once I have set out the applicable statutory provisions and a little more detail about the chronological background.

The relevant sections of the 1980 Act

[6]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”.[7]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.”[8]It is common ground that Mr Platt had knowledge that his injury (i.e. his tinnitus and hearing loss) was significant within the meaning of section 14(1)(a) of the 1980 Act by 1997 at the latest. The main question is, therefore, whether he had constructive knowledge under sections 14(1)(b) and 14(3) of the 1980 Act that the injury was attributable in part to an act or omission of his erstwhile employers by that time.

The chronological background

[9]Mr Platt was born on 7th May 1938. He was employed by BRB or its predecessors from 1953 to 1988. The judge dealt with some of the detail of that employment, but it does not seem to me to be important to what we have to decide since it is common ground that he was exposed to noise in the course of it.[10]In 1982, Mr Platt first consulted his doctor about his hearing problems. His audiogram was recorded as normal, and he was diagnosed as suffering from generalised sinusitis.[11]Mr Platt made three more visits to his GP in 1980s complaining of catarrhal deafness, and a further 3 visits in 1990 complaining of ear wax, otalgia (ear pain originating in the inner ear), and “R.O.M.” (an abbreviation which the parties were not able to explain).[12]After reporting two apparently unrelated ear problems in 1996 and March 1997, Mr Platt complained in May 1997 to his General Practitioner, Dr J Lind (“Dr Lind”), of “right tinnitus and reduction in hearing, particularly on that side”. Mr Platt was referred to an ENT specialist, a Mr J Matthews (“Mr Matthews”), whom he saw on 29th August 1997. The judge found that Mr Platt was asked by Mr Matthews whether he had worked in a noisy environment, and he replied that he had. Mr Platt did not, however, go on to ask and was not told that he was suffering from noise induced hearing loss.[13]On 8th September 1997, Mr Matthews reported back to Dr Lind by a letter which it is worth reciting in full:- “Thank you for asking me to see this 60 year old gentleman who has noticed a hearing loss especially on the right side for the last 18 months. It is associated with a high pitched tinnitus. He also has problems with loss of balance which is momentary and associated with head and neck movements. There is no history of trauma. He gives a history of noise exposure in the past. On examination both tympanic membranes were intact and normal. Neurological examination was normal. Audiogram showed asymmetrical high frequency sensori-neural loss on the right side. In view of this I have requested a MRI scan of his IAM’s [internal auditory meters]. We will see him back with the results.”[14]In 2005, Mr Platt consulted his doctor again about wax in his right ear.[15]In 2008 or 2009, the judge found that Mr Platt’s wife began complaining that he was turning the volume up on the television so that it was too loud and that Mr Platt was not communicating properly in social situations, but Mr Platt paid no attention to his wife and did nothing about her complaints.[16]In August 2010, Mr Platt read an article about industrial hearing loss and tinnitus in a newspaper. It was that which lead him to contact solicitors, and to consult an Ear Nose and Throat Surgeon, Mr Hisham Zeitoun, who advised him in a detailed report dated 8th May 2011 that 6.2 out of 37.4 decibels of his hearing loss was noise induced, and the remaining 31.2 decibels of hearing loss was age-associated.[17]On 25th October 2011, Mr Platt issued his claim form against BRB.

Relevant authorities

[18]In Adams v. Bracknell Forest Borough Council [2005] 1 AC 76, the House of Lords considered the proper meaning of section 14(3) of the 1980 Act in the context of a claim by a dyslexic adult (aged 30 when proceedings were issued) against the local education authority responsible for his schooling. It was held unanimously that the date of the claimant’s constructive knowledge meant that the claim was out of time, but the reasoning in the 4 substantive speeches is not entirely consistent. Lord Hoffmann (with whom Lord Phillips agreed) expressed the view in paragraph 47 that section 14(3) required “one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate”. Lord Walker and Baroness Hale, however, expressed caution about any simple formula that would cover every case which might occur, and alluded to a distinction between the relevance of different types of personal characteristics in the context of a debate about whether the appropriate test was objective or subjective or a mixture of the two (see particularly paragraphs 76-78 and 91).[19]In London Strategic Health Authority v. Whiston [2010] EWCA Civ 195, the Court of Appeal had the opportunity to consider the effect of the Adams decision. Dyson LJ (with whom Longmore and Smith LJJ agreed) made clear at paragraph 55 that paragraph 47 of Lord Hoffmann’s speech in Adams was not part of the ratio in that case. At paragraph 56, Dyson LJ rejected the submission that section 14(3) operated in all cases where a person was aware that he had suffered a significant injury to require one to assume that he will be sufficiently curious about the causes of the injury to ask questions about it. He held at paragraph 58 that section 14(3) provided that the issue of constructive knowledge should be determined by reference to the knowledge which a person might reasonably be expected to acquire, which must depend on all the circumstances of the case. At paragraphs 60 and 63, Dyson LJ drew attention to the distinction between the curiosity to be expected of someone who had lived with a disability all his life as compared to someone who suffered an injury in adulthood. Mr Simon Mallett, counsel for Mr Platt, relied particularly on this distinction as being relevant in this case where Mr Platt was seeking medical advice about his hearing in 1997 at the age of 59, some 9 years after he had retired from working in BRB’s noisy environment, and after he had suffered a variety of intervening ear problems. He submitted in effect that Mr Platt’s position was more akin to a person with a lifetime disability than to a person with a recent traumatic injury.[20]The Court of Appeal considered the position again in Johnson v. Ministry of Defence [2012] EWCA Civ 1505, where the claim was in respect of noise-induced deafness. The facts were similar to this case, but by no means identical. In brief outline, the claimant had worked at Chatham dockyard in noisy conditions for some 10 years ending in 1979, and had first become aware of his hearing problem in 2001, though he did not consult a doctor about it until 2006, when he was advised that the hearing loss was probably due to his age (by then 66). Lady Justice Smith (with whom Etherton and Hallett LJJ agreed) held that a reasonable man in the circumstances and with the factual knowledge of the claimant would have consulted his GP about his hearing by the end of 2002, allowing for some thinking time, so that by that time he had constructive knowledge of his condition being attributable to exposure to noise whilst employed by the defendants, and his claim was statute barred.[21]Smith LJ rehearsed the main points arising from both Adams and Whiston and continued at paragraphs 28-30 as follows:- “[28] Would a reasonable man in his situation and with his knowledge be curious to know the cause of his deafness? I find this question not entirely easy and I think the circumstances are "close to the line". I must apply an objective test and one which reflects what Dyson LJ (as he then was) in Whiston called the "tightened up" approach required since Bracknell. Applying that test, I come, not without hesitation, to the conclusion that a reasonable man in the 21st century would be curious about the onset of deafness at the relatively early age of 61 and would wish to find out what was causing it. In the circumstances of this case, I think that a reasonable man would have consulted his GP about his deafness. That is so, even though I accept that a reasonable man might not think of the possibility of bringing a claim for damages. In my view, a reasonable man would simply want an explanation for his condition and possibly also to discover whether there was any medical treatment which could improve his position. [29] Would consulting his GP have afforded the Appellant the knowledge of attributability that he needed? I do not accept Mr Levene's submission that, even if the Appellant had consulted his GP in the early 2000s, he would not have been given advised [sic] that his condition might be attributable to noise exposure. In 2006, the GP was not consulted specifically about the cause of the deafness; he was only asked if there was wax in the Appellant's ears. I think it probable that, if he had been asked what the cause might be, as an open question, in say 2001 or shortly thereafter, the GP would have thought of the possibility of noise deafness and would have asked the Appellant about his working history. Not only is noise exposure well known to be a cause of deafness but this GP was in practice in Kent, not far from the Chatham Dockyards. Shipbuilding was a notoriously noisy business in the 1960s and 1970s due to the use of percussive tools and it would, in my view, be most surprising if the GP had not come across middle-aged and elderly patients who were deaf as a result of their employment in that dockyard. I realise that there was no evidence to that effect in this case but I consider that I ought to take judicial notice of that likelihood, based upon my personal experience of noise deafness cases over a period of nearly 40 years. It follows that I think it probable that if the GP had been consulted as to the cause of the deafness, he would have asked about the Appellant's employment history and the possibility of noise deafness would have come to light. [30] I should make it plain that, if the Appellant had consulted his GP, as I think a reasonable man would have done, and if the GP had not asked the appropriate questions so as to bring to light the possibility of noise as a cause, I would not have expected the Appellant, as a reasonable man, to seek expert advice from a more specialist source, such as an ENT surgeon. If he had not been properly advised by the GP, he would not have been fixed with constructive knowledge.”[22]I have set out these three paragraphs in their entirety, because, as I mentioned in argument, I do not find them entirely easy to reconcile. Smith LJ was saying clearly at paragraph 28 that she had concluded that a reasonable man in the claimant’s position would wish to find out what was causing his deafness, yet at paragraph 30 she says that if he had consulted his GP at the appropriate time in 2002 (which he did not), and if the GP had not in fact asked questions which brought to light the possibility of noise as a cause of his deafness, he would not be fixed with constructive knowledge. The last sentence of that paragraph indicates that she is postulating a situation in which the claimant was simply given the wrong advice in answer to the question:
“what caused my deafness?”
I do not understand Smith LJ to be contradicting her earlier determination that a reasonable claimant in Mr Johnson’s position ought to have asked that question in the first place.[23]Finally, we were referred to Collins v. The Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, which was decided after the judge’s decision. It was a rather different case concerning a claimant who had been diagnosed with lung cancer, but delayed for 6 years in asking his doctors about its possible causes. In that case, Jackson LJ (with whom Lewison and Macur LJJ concurred) held that the judge had been right to apply the now well-known test and to conclude that a reasonable person in the claimant’s position would have asked about the possible causes of his lung cancer soon after it was diagnosed and by mid-2003. Again, therefore, the claim was held to be statute barred.

Discussion

[24]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.[25]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.[26]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.”[27]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.[28]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.[29]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.[30]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.[31]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.[32]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.

Conclusion

[33]For the reasons I have sought shortly to give, I would allow the appeal reversing paragraph 1 of the order dated 28th November 2013. I would give judgment for BRB on the limitation issue on the basis that Mr Platt had constructive knowledge of both the matters identified in section 14(1) of the 1980 Act more than 3 years before the issue of his claim form in these proceedings.[34]I agree.[35]I also agree.

Cited in 1 later judgment