McCoubrey v Ministry of Defence

For section 14(2) of the Limitation Act 1980, the significance of an injury depends on its seriousness, not on its later effect on the claimant’s private life or career. The inquiry is substantially objective. It asks what a reasonable person in the claimant’s objective circumstances, knowing the injury, would have considered sufficiently serious to justify proceedings. Personal characteristics such as intelligence, ambitions and aspirations are disregarded.

The section 14 route is comparatively narrow because it extends time as of right, whereas section 33 provides a discretionary fallback. A later career consequence does not postpone time where the claimant already knew the nature and extent of the injury.

The claimant suffered hearing damage during an Army training exercise in 1993. He brought proceedings against the Ministry of Defence in 2004. The defendant contended that the claim was out of time under section 11(4) of the Limitation Act 1980.

The High Court held that the claimant could rely on the date-of-knowledge provisions in section 11(4)(b) and section 14(2), because the impact on his Army career did not become significant until 2001. It did not determine his alternative application under section 33. The appeal concerned whether career consequences and the claimant’s subjective circumstances were relevant to section 14(2), and what should happen to the section 33 issue.

Disposition. Neuberger LJ allowed the appeal. Ward LJ and Tugendhat J agreed. The section 33 issue was remitted to the trial judge.

1. Meaning of significant injury. Section 14(2) requires attention to the seriousness of the injury itself. It does not require an assessment of the injury’s effect on the claimant’s quality of life, career or future prospects. The provision therefore has a comparatively narrow scope. This was consistent with the approach in Dobbie v Medway Health Authority [1994] 1 WLR 1234, and with the reasoning in Catholic Care (Diocese of Leeds) v Young [2006] EWCA Civ 1534 and Adams v Bracknell Forrest BC [2004] UKHL 29.
2. Objective test. The previous understanding of section 14(2), reflected in McCafferty v The Receiver of the Metropolitan Police [1977] 1 WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85, had been displaced. The relevant person is a reasonable person in the claimant’s objective circumstances who has suffered the injury in question. Actual personal attributes, including intelligence, aspirations and ambitions, must be disregarded. The reaction to the injury is assessed, rather than the reaction to its possible consequences.
3. Application. The claimant knew the nature and extent of his hearing loss, tinnitus and pain within months of the incident. The injury had then remained substantially unchanged. A reasonable person in his position would have regarded it as sufficiently serious to justify proceedings by February 1994 at the latest. The later discovery that it would damage his Army career did not postpone time under section 14(2).
4. Section 33. The Court of Appeal has power to make findings or exercise a discretion which the trial judge could have made, but that power should be used cautiously. The section 33 balancing exercise involved complicated and inter-related issues, and the defendant had produced further evidence which the claimant had not properly considered. The matter was therefore remitted to the trial judge, preferably Judge Cox if practicable.

• Court of Appeal (Civil Division) — In [2007] EWCA Civ 17, the court allowed the appeal on section 14(2) and remitted the section 33 issue.
• High Court of Justice, Medway District Registry — Her Honour Judge Cox held that the claim was brought in time under section 11(4)(b) of the Limitation Act 1980 and did not determine the alternative section 33 argument.