Teague v Mersey Docks & Harbour Company & Ors

For limitation of a personal-injury claim, Limitation Act 1980, sections 11 and 14 require an objective assessment of when the claimant first knew of a significant injury attributable to the alleged breach. Section 14(2) concerns the injury, viewed in context, rather than the eventual quantified disability or each symptom in isolation. Earlier audiograms, warnings and a later complaint may together establish the relevant knowledge. An error in excluding potentially relevant expert evidence will not necessarily invalidate the decision if it could not affect the critical-date finding. The discretion under section 33 is wide, and appellate interference is difficult where the trial judge reached an open conclusion and gave adequate reasons.

The appellant claimed damages for noise-induced hearing loss arising from employment in the Liverpool docks. The respondents pleaded limitation. Following a preliminary hearing, HHJ de Haas QC held that the appellant acquired the relevant knowledge in August 1996, so that proceedings issued in 2005 were six years out of time, and refused to exercise the discretion under section 33. The appellant challenged the exclusion of supplementary expert evidence and the findings on date of knowledge. The central issues were whether the injury was significant by August 1996 and whether the limitation decision could be revisited under section 33.

The appeal was dismissed. The renewed application for permission to appeal concerning section 33 was refused.

1. Excluded evidence. The trial judge ought to have admitted the supplementary report interpreting the earlier audiograms. Although the statutory inquiry focused on what the appellant knew and experienced at the time, the report was potentially relevant to his credibility. The error was immaterial because the report did not address August 1996, the critical date, and did not address knowledge of injury as distinct from the later quantification of disability.
2. Date of knowledge. The test under sections 11 and 14 was applied correctly. Whether an injury was significant was an objective question, assessed by asking whether the claimant would reasonably have regarded the injury as sufficiently serious to justify proceedings. The inquiry concerned knowledge of the injury, not merely symptomology or consequential disability. The 1991 and 1995 audiograms, the warnings about hearing loss and noise exposure, and the appellant’s self-initiated complaint to a medical adviser in August 1996 entitled the judge to find that he had knowledge of a significant hearing complaint. The absence of earlier symptoms and the absence of a quantified disability in 1996 did not compel a different conclusion. Furness v Firth Brown [2008] EWCA Civ 182 was materially different because the present finding was based on the wider evidential context.
3. Section 33. The discretion to allow a claim to proceed despite expiry of the limitation period was wide. The judge reached a conclusion open to her on the evidence and sufficiently explained it. The proposed appeal therefore had no real prospect of success.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1601, 11 December 2008. Appeal dismissed and renewed application for permission to appeal refused.
• Liverpool County Court: HHJ de Haas QC determined the limitation issue as a preliminary issue on 26 and 27 June 2008. She found that the appellant’s date of knowledge was August 1996, that the proceedings were out of time, and declined to exercise the discretion under section 33.