Collins v Tesco Stores Ltd

Under the Limitation Act 1980, the date-of-knowledge test requires separate consideration of whether an injury was significant and whether it was attributable to the alleged act or omission. Significance is assessed objectively and commonsensically. A claimant’s stoicism, robustness or preference to wait and see cannot determine the issue, although conduct may sometimes illuminate seriousness. Attributability requires knowledge that the injury was capable of being attributed to the identified work activity. Knowledge of probable causation, negligence or breach is unnecessary. On the evidence, both forms of knowledge existed by January 1998. The claim issued more than three years later was therefore time-barred.

An employee of Tesco succeeded before Mr Recorder O’Dwyer in a personal injury claim arising from heavy manual work, receiving damages of £24,670.93. The Recorder found breaches of the common-law duty of care and the Manual Handling Operations Regulations 1992. Tesco appealed on limitation and, alternatively, on the assessment of post-August 1999 loss of earnings. The central limitation issues were when the claimant first knew that her injury was significant and when she first knew that it was attributable to her work.

1. Disposition. Lord Justice Pill delivered the leading judgment. Lord Justice Laws agreed and added observations on the statutory tests; Sir Martin Nourse agreed with both judgments. The appeal was allowed because the claim was statute-barred.
2. Significance. Section 14(2) of the Limitation Act 1980 requires an objective, commonsense assessment of whether the injury was sufficiently serious, to the claimant’s knowledge, to make it reasonable to institute proceedings against a defendant able to satisfy the judgment and not disputing liability. The statutory comparison does not invite an assessment of the claimant’s readiness to litigate. Stoicism, robustness and a wait-and-see attitude cannot be crucial to significance, although they may sometimes illuminate it. This approach was consistent with McCafferty v Metropolitan Police District Receiver [1997] 2 All ER 756.
3. The claimant’s symptoms, treatment and absence from work meant that the only proper conclusion was that she knew of a significant injury by January 1998.
4. Attributability. The test under section 14(1)(b) is less rigorous than proof of causation. It requires subjective knowledge that the identified injury was capable of being attributed to the identified act or omission. Knowledge of probable causation, actionable negligence or expert confirmation is unnecessary. Applying the approach in North Essex District Health Authority v Spargo [1997] 8 Med LR 125, the claimant’s evidence established the necessary causal link with her work by January 1998.
5. The Court of Appeal was entitled, and had a duty, to examine the evidence and decide whether the Recorder’s conclusions could properly be reached. They could not. More than three years elapsed before proceedings were issued.
6. Damages. The loss-of-earnings issue did not arise after the limitation finding. Obiter, the court would have upheld the partial award. The Recorder was entitled to accept the medical evidence despite differences between the claimant’s evidence and the history given to the doctor, and the evidence disclosed no extraneous reason breaking causation.
7. Order: appeal allowed with costs here and below, subject to detailed assessment.

• Court of Appeal (Civil Division) allowed the appeal on 24 July 2003, holding that the claimant had the requisite knowledge by January 1998 and that the claim was out of time: [2003] EWCA Civ 1308.
• Wandsworth County Court, before Mr Recorder O’Dwyer, awarded the claimant £24,670.93 on 22 November 2002 after finding Tesco in breach of duty.