McCoubrey v Ministry of Defence

For limitation purposes, an appeal should remain open where the construction of the significant-injury requirement under section 14(2) of the Limitation Act 1980 is reasonably arguable. The assessment may require attention to both subjective perception and objective matters, including the nature and quantum of the injury and the damages it might attract. A claimant’s view that an injury is merely an irritation does not necessarily resolve whether it is significant. Where the lower court has not considered a possible section 33 extension, the appeal timetable may need to allow argument on that issue in the alternative.

The claimant, a serving soldier, alleged that a thunderflash thrown during a training exercise on 15 October 1993 caused noise-induced deafness. Proceedings were issued on 21 July 2004. The Ministry of Defence relied on limitation. On a preliminary issue, HHJ Cox found that the claimant did not know that his injury was significant until late 2001 and therefore did not consider an extension under section 33 of the Limitation Act 1980.

Ward LJ refused permission to appeal on paper. The Court of Appeal considered whether the judge had applied the correct test of significance, including the relationship between subjective perception, objective assessment and constructive knowledge.

1. Permission granted. Waller LJ held that the Ministry of Defence should have the opportunity to argue that the judge applied the wrong test under section 14(2) of the Limitation Act 1980. The proposed grounds were at least arguable and had a reasonable prospect of success. Longmore LJ agreed.
2. The court recognised that the judge had directed herself on both the subjective and objective aspects of significance. Nevertheless, McCafferty v Metropolitan Police Receiver [1977] 1 WLR 1073 created difficulty. In that case, the Court of Appeal considered that deafness capable of attracting a significant sum in general damages could be a significant injury even though the claimant regarded it as an irritation.
3. Later authorities did not remove the arguability of the issue. KR v Bryn Alyn Community Ltd [2003] EWCA Civ 85 lent support to the possibility that a serious injury might exist before a claimant considered proceedings appropriate. A passage in Dobbie v Medway Health Authority [1994] 1 WLR 1234 also supported that possibility, while indicating that the quantum of damage was relevant. The court did not finally determine the proper construction of section 14(2).
4. Constructive knowledge under section 14(3) was not materially in issue. Since the lower court had not considered section 33, the court indicated that it would be convenient, if possible, for the substantive appeal to address that issue in the alternative. The appeal time estimate should allow for that possibility, subject to the court hearing the appeal.

1. Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted in [2006] EWCA Civ 1369.
2. Ward LJ: Permission to appeal was refused on paper.
3. Medway County Court: HHJ Cox decided the preliminary limitation issue in favour of the claimant’s case on knowledge, finding that the injury was not known to be significant until late 2001. The section 33 issue was not considered.