Collins v Tesco Stores Ltd

J U D G M E N T

1. LORD JUSTICE PILL: This is an appeal against a decision of Mr Recorder O'Dwyer given on 22 November 2002 in which he awarded damages to Mrs Jan Collins, the claimant in a personal injury action, in the sum of £24,670.93. The Recorder found that the claimant's employers Tesco Stores Ltd were in breach of their duty of care to her. The points taken upon this appeal are in relation to the defence of limitation and, if the judgment is upheld, to one component of the damages awarded.

2. The claimant was employed by the defendant as an assistant in a petrol kiosk in its store in Hornchurch. In the course of her work she was required to re-stock the kiosk with goods which she had to collect from the main store which was 100 to 150 yards away. The method of work varied at different times. The claimant was provided with a metal cage to assist in moving the goods. The judge accepted that the process of moving the goods on the cage was heavy and awkward, particularly because of the weight of the cages, the distance the cages had to be moved across surfaces and the surfaces to be negotiated. He made a finding against the defendant at Common Law and under the Manual Handling Operations Regulations 1992. In consequence of the breach of duty the claimant sustained an injury to her right shoulder.

3. At the trial the case was put on the basis that the work had exacerbated, although not caused, tendonitis in her right shoulder. Putting it in summary form at this stage, she gave evidence that the symptoms first appeared in late 1996. The claimant continued at work with the defendant until 26 June 1998 and was then off work until 13 November 1999. She has worked only for short periods since that date. Proceedings were not issued until 26 January 2001. A defence of limitation having been raised, the claimant's case was that she did not have knowledge of the components of the claim until 26 June 1998 on which date she had a consultation with a physiotherapist and was told that she was suffering from a strain injury caused by heavy lifting. Firm advice was given to her at that stage, and she immediately ended her employment with the defendant.

4. Section 11 of the Limitation Act 1980 provides a limitation period of three years in an action for damages for negligence or breach of duty. Sub-section (4) provides, insofar as material, that -

"(4) ..... the 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."

Knowledge for that purpose is defined in Section 14 of the Act. Insofar as material, that section provides:

"(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;" -

(c) and (d) are not material -

"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."

Sub-section (2) states:

"(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."

Sub-section (3) states:

"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 sub-section 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."

5. The defendant contended that the claimant had knowledge within that definition at the latest by 14 January 1998, that is, more than three years before the proceedings were commenced. Evidence was given in considerable detail by the claimant before the Recorder who, subject to one point to which I will refer, accepted her evidence.

6. Two issues arise upon the limitation aspect of the appeal. The first is as to the date of knowledge that the injury was significant, and the second is as to the date of knowledge that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence. The judge found in favour of the claimant on both issues, and it was accepted on behalf of the defendant by Mr Wilkinson that both findings have to be reversed if the defendant is to succeed in this appeal.

7. On the first issue the judge's conclusion is expressed at paragraph 31 of his judgment:

"When did this lady have knowledge of the significant injury? It is both a subjective and an objective test. The court can examine whether the particular plaintiff subjectively considered the injury sufficiently serious but I must also look objectively as to whether she was acting reasonably. In my judgment it was reasonable for the claimant in this case to adopt a wait and see attitude to see if the pain in her shoulder was merely a strain or ache and might soon settle and therefore was not a significant injury within the meaning of Section 11 prompting consideration of legal redress. She did, however, have that information and approach as from the time of the appointment with her physiotherapist."

In expressing himself in that way, the Recorder plainly had in mind the expression of the test by Lord Justice Geoffrey Lane in McCafferty v Metropolitan Police District Receiver[1997] 2 All ER 756 at 775C:

" ..... it is clear that the test is partly a subjective test, namely: would the plaintiff have considered the injury sufficiently serious? And partly an objective test, namely: would he have been reasonable if he did not regard it as sufficiently serious? It seems to me that sub-s (7) [predecessor of Section 14 (2) of the 1990 Act] is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages?"

8. On behalf of the defendant, Mr Wilkinson has referred the court in detail to the evidence of the claimant. He submits that, upon analysis of that evidence, the only finding which can properly be made is a finding that knowledge existed by 14 January 1998 that the injury was significant. He challenges the test adopted by the judge insofar as the judge appears to have placed reliance upon the claimant's stoicism, to adopt the word used by counsel. It is undoubtedly true that the claimant did, as the judge found, adopt a wait-and-see attitude to the symptoms which she was admittedly experiencing. It is submitted that the test does not enable a person - whether for reasons of self-delusion or eternal optimism, as Mr Wilkinson put it - not to take appropriate action.

9. It is necessary to refer in some detail to the evidence the claimant gave. Some of the passages refer to both limbs of the test. At page 15 of the bundle the claimant was asked about the pain in the shoulder, which Dr Hirschowitz had mentioned as having begun in March 1997:

"Q Can you describe what the pain felt like?

A It was an acute pain, hard to describe. It stopped me moving my arm to a certain degree.

Q Did it come on quickly or gradually?

A Over a period of a few months.

Q And was March 1997 the beginning of that?

A No, it was very slight before that. In March 1997 it then started to make me take notice of it."

There was evidence that on 18 August 1997 the claimant saw her general practitioner in relation to the shoulder:

"MR COUGHLAN: The general practitioner entry for that date queries the diagnosis of a frozen shoulder. Was anything said to you about a frozen shoulder on that day?

A No. Apparently, when you have some sort of an injury, if you don't use it because it is injured, then you get a frozen shoulder.

Q Were you told when you saw your general practitioner on that day what it was that was causing you your pain?

A No. He thought it was something to do with arthritis and he gave me a painkilling injection and referred me to Dr Chakravarty.

Q Just so that we are clear, Mrs Collins, the fact that you were seen 11 days later on 29 August when X-rays were ordered, and on page 28 of Mr Hirschowitz's report, does that accord with your recollection? Did you have X-rays taken?

A Yes.

Q And was it your GP who referred you to Dr Chakravarty?

A Yes.

Q At any point prior to being referred to Dr Chakravarty did you know what was causing you your problem?

A No. I thought I had just pulled something."

Mr Coughlan, for the claimant, relies upon that last answer, among other answers, as one which entitled the judge to take the view he did of the significance or otherwise of the injury.

10. In cross-examination at page 44 of the bundle:

"Q ..... If you saw Dr Chakravarty in May 1998, your symptoms had been going on for over a year, so late 1996.

A Yes, they had started by then.

Q When you saw Mr Hirschowitz the date in March 1997, that was the date that you realised your symptoms were more serious and that they were not going away.

A Yes.

Q So they had presumably gone by that stage from being a minor irritation or nuisance to something more serious?

A Yes."

I pass over certain other answers:

"Q After March 1997, your symptoms obviously do not get better. If anything, they get worse, and I infer that they get worse because eventually in August 1997 you take yourself off to see your GP?

A Yes."

Later - by reference to Dr Chakravarty's letter in January 1998 to which I will refer:

"Q It would seem that your time off work, looking back ..... was around September/October 1997. Would you agree with that?

A Yes."

Q Having had some time off work as we see from Dr Chakravarty's letter, your symptoms improved?

A Yes.

"Q Obviously, they improved sufficiently that you were able to go back to work?

A Yes.

Q Again, you were conscious, as a result of that that there was a link between the work you were doing and the symptoms you were having in your shoulder?

A I still thought at that time that after a rest it would get better.

Q You were hoping that things would get better.

A Yes."

At page 69 of the bundle, in re-examination, questions were asked about the onset of problems. There was reference to the medical report:

"Q You accept it may be late 1996 as the onset of your problem?

A Yes.

Q Do you remember what you told your GP?

A I think I just told him that my shoulder was hurting and that I did heavy lifting at work and that was about it really. I didn't know what was wrong with it at that time.

Q I want to look at the first page of that bundle. there is a note there that reads: '18 August right shoulder ache 3/13', which is medical shorthand for three months. Do you remember telling your GP that?

A I had it for three months.

Q Do you think that note might be wrong?

A No, I don't say it is wrong, I can't read it actually."

At page 71:

"Q How was the pain during January to May 1998?

A Getting worse."

Later on the page there is an answer on which Mr Coughlan relies:

"Q You thought what about it getting better?

A That if I took things easy it would eventually get better just like a pulled muscle or something of that nature."

11. The history is also recorded in the medical report to which reference was made, as I have indicated, in the cross-examination. That is a report from Dr Chakravarty, a consultant rheumatologist, of 26 January 1998 which followed a consultation with the claimant at his clinic on 14 January. It is headed:

"Diagnosis: Right acromioclavicular joint arthritis

History of present illness: This lady had painful right shoulder for over a year, which came on rather suddenly and has been getting worse for the last few months. Apparently she couldn't lift her arm initially for which she had to be off sick for four weeks. However, her symptoms have improved but she doesn't admit to any Paraesthesia in her upper or lower limbs. She has no symptoms related to early morning stiffness, or swelling of her joints. Her personal and social histories are uneventful."

There is reference to smoking, drinking and other matters:

"Physical examination: General and systemic examinations were normal including joints. Examination of the right shoulder revealed acromioclavicular joint arthritis.

Investigations: I requested for various blood tests and also x-rayed her hands and feet as they appeared to be slightly swollen at the Map's and Pip's.

Management: I have injected the right acromioclavicular joint today and also offered physiotherapy. I have given her an ARC booklet on shoulder pain to educate herself, and I shall review her in four months after she has obtained some physio."

12. Mr Wilkinson relies upon the claimant's own evidence and upon the history as recorded in the medical report in support of the submission that this was a significant injury within the meaning of that term in Section 14 (1) (a) of the Act. Mr Coughlan submits, by references to the pulled muscle and the fact that the claimant was prepared to continue with her activities, that the judge was entitled to hold that the injury was not significant in that sense. Plainly, this court is reluctant to reverse findings of fact made by a judge who has had the opportunity to consider the evidence and has made his findings upon it.

13. The test is not an easy one to apply. It is set out in Section 14 (2) of the Act:

" ..... 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."

That definition must be read, in my judgment, in the context of the purpose of the statute. The limitation period for an action such as this is normally one of three years. The Act provides relaxations, with one of which the court is concerned. It allows a claimant with a lack of knowledge to bring a claim beyond the three-year period from when the cause of action arose. At the same time it must be borne in mind that the defendant is entitled to the protection of a limitation defence which the statute provides and the Section must, in my judgment, be read as striking a balance between fairness to a claimant who may lack knowledge and fairness to a defendant who, because of the statute and in the public interest, is entitled to be free of claims unless they are brought within an appropriate time.

14. In my judgment, an over-elaborate approach to the question is inappropriate. A possible elaboration is introduced with the "no-risk" litigation contemplated in the Section. That does not introduce into the test a consideration of the readiness with which particular injured persons may resort to litigation. Such elaboration is, in my judgment, inimical to the intention of the statute in this respect. The word "significant" has to be approached in a commonsense way, and a commonsense way based upon the evidence in the particular case. While in some circumstances the effect on a particular plaintiff might be a factor, the test appears to me to be an objective test as, in my judgment, Lord Justice Geoffrey Lane in effect recognised. If, by introducing the concept of wait-and-see, the judge was suggesting that a relevant consideration when considering the significance of an injury is the degree of robustness or stoicism which a claimant has, in my judgment, it is an elaboration which is not appropriate to the test and I would respectfully disagree with his approach. However sympathetic one would wish to be to a claimant who may be slow to resort to the courts and who is prepared to adopt a wait-and-see attitude as to whether an injury is significant, those factors cannot be crucial to whether an injury is significant, although in some circumstances they may throw light on whether or not it is.

15. Applying the test, I accept the submission of Mr Wilkinson that on the basis of the evidence before the court the only conclusion which could properly be brought reached was that by January 1998 there was knowledge of a significant injury. The symptoms described, the treatment given, the absence from work, are inconsistent with this injury being less than significant.

16. I turn to the second aspect of the test, that of attributability. Here, too, Mr Wilkinson has made a detailed analysis of the evidence for the consideration of the court. The judge's findings are expressed in paragraphs 32 and 33:

"32 When did she have knowledge that the injury was attributable to her work? This question of attributability also troubles me. Here is a lady who has been treated for an arthritic injury; she is referred to a rheumatologist. Of course she is aware that it is difficult for her to move the cages around and that it causes her pain, but is she aware, or ought she [to] be aware, that the injury itself is attributable to the action of moving the cages? Counsel for the defendant carefully cross-examined her on the basis that she realised there was [a] connection between the injury and her work, to which she readily admitted, but it was not the case, I find, that by such an admission she was or could be saying that she knew that the injury was attributable to the work insofar as there was a cause or connection of some kind .....

33 The first time she might have been aware of this was at the meeting with the consultant rheumatologist on 14 January 1998. This is curious because the diagnosis is that of arthritis, as may be seen by his report on 26 January 1998. However, the claimant orally recalls him saying it was an overuse injury. She thought that after a couple of months rest it would be okay. How am I to interpret this? It seems to me that the claimant herself had an expectation that the symptoms would go with rest. The documentary evidence indicates an arthritic condition. I can understand a confusion and lack of ability by the claimant to place reliability at this time upon a test of attribution."

The judge goes on at paragraph 34 to deal with the consultation with the physiotherapist on 26 June 1998. It is common ground that by that date the requirements of Section 14 are satisfied, and it is clear that events took a radically different course after that date although the point is made on behalf of the defendant that it was a further substantial period - in fact, one of over two years - before the claimant decided to consult solicitors.

17. In relation to the judge's conclusions, Mr Wilkinson submits that the judge has confused the question of diagnosis of the injury with the true question, which is one of considering the symptoms and the causal connection with the work. As members of the court have stated in the course of argument, there is considerable difficulty in construing the last part of paragraph 32. For myself, I have to confess I am not clear, with respect, what point the judge was making in the last but one sentence of the paragraph. Plainly, the reference in the medical report to an arthritic injury is a relevant factor on this aspect of the claim. Mr Coughlan submits that if the doctors themselves were uncertain as to the causal link, how could the claimant be aware of it.

18. There is an issue of fact as to what passed between the rheumatologist and the claimant at the consultation on 14 January 1998. There is no reference in the notes or in the report to the claimant being told that it was an "overuse injury". The claimant's evidence was plain and firm that she was told that it was an overuse injury. If that is right, then, as Mr Coughlan accepts, it would not be open to her to argue that she was unaware on that date of a sufficient causal connection. The judge confronted that point and decided, as appears in paragraph 33, that in that respect, though not in others, the claimant was confused.

19. Mr Wilkinson has analysed the general evidence given by the claimant as to the history and as to what passed between her and the doctors at the various medical consultations. He submits that the judge, in the light of her evidence as a whole, was not entitled to conclude that she was confused on this point. Her evidence is so clear in relation to the consultations, he submits, on every other point that the route the judge chose upon this point was one he was entitled to take.

20. Mr Coughlan submits that the court should respect the conclusion of the judge on this point. The judge had every opportunity to assess the claimant's credibility, which the judge approved, and her reliability which, except in this respect, he approved. There was prolonged cross-examination and re-examination, and the judge's conclusion should be respected. In my judgment, that issue does not conclude the case and that is because of other evidence given by the claimant as to her knowledge of a sufficient causal link between the symptoms she was suffering and her work. Some of the references I have already mentioned because, understandably, the two were dealt with together in cross-examination in the evidence to which I have referred. It is necessary to refer somewhat more fully to that evidence. At page 46:

"Q ..... When you went to see your GP in August 1997, so when you first go off to see your GP, you are presumably conscious at that stage, as you told us, about the probable connection between the work you are doing and the symptoms you are getting in your shoulder?

A Yes.

Q And that presumably is something that you would have discussed with your GP?

A I didn't discuss it with him. I just told him that I had a painful shoulder, told him what work I did and he gave me the injection for the pain but at that point there was no real diagnosis.

Q But you no doubt would have told him what your work was -

A Yes.

Q - and no doubt what your work involved?

A Mm."

It is clear that on that and other occasions an affirmative answer was intended.

" .....

Q Presumably, at that stage, you would have focused on the heavier parts of your work, the pulling and pushing of the cages?

A Mm.

.....

Q And were you making the connection between the pulling and pushing of the cages and the pain in your shoulder?

A Yes."

Thus the answers given by the claimant on this topic do not relate only to the consultation with Dr Chakravarty and the point upon which the judge found the claimant was confused.

"MR WILKINSON: You then go to see Dr Chakravarty on 14 January 1998 and he told you that his view, at that stage, that the problem was an overuse problem - those were your words earlier?

A Yes.

Q And, in answer to the question from his Honour about what did you understand by that, you gave the commonsense reply that you thought it was because you were using your shoulder too much?

A Yes, continually heavy work.

Q Doing continually heavy work. Presumably, there were no other interests or hobbies which you have outside of work in which you were over-using your arm?

A No.

Q You are not a ladies fast bowler in cricket or something of that sort?

A No. The occasional swim and that is about it really, a bit of gardening.

Q So you understood Dr Chakravarty to be saying overuse at work.

A Yes.

Q I think you told us in your evidence that, in consequence of what Dr Chakravarty told you, you tried to take the job easier, more slowly, so you tried yourself to ease your working?

A Mm.

Q Again, it must follow from that that you discussed with Dr Chakravarty the work that you did and the link that you thought there was between your work and the symptoms in your shoulder.

A Yes.

Q Indeed, he confirmed in your mind that there was a link between those two factors?

A Yes."

21. In my judgment, having regard to the claimant's evidence as a whole, the causal link necessary to establish knowledge for attributability purposes was present by January 1998. As with the question of the significance of the injury, that, in my judgment, is the only conclusion which the judge could properly reach upon the evidence. It is not necessary to decide for this purpose whether the judge has applied an incorrect test. The court has a duty, in my view, to look at the evidence itself and to decide whether the conclusion which the judge reached could properly be reached.

22. I have come to the conclusion that the judge could not reach the conclusion he did. It follows that, in my judgment, the appeal must be allowed. I have come to that conclusion with reluctance. The claimant was a candid witness who wished to carry on through the symptoms she was suffering, and it is difficult to criticise a claimant who adopts a wait-and-see policy as this claimant did. As I have indicated, the purpose of the limitation statute is to strike a balance as between claimants and defendants. Moreover, it is not the case that a closure occurred on 14 January 1998 when - on the conclusion I have reached - the claimant had the appropriate knowledge. She had three years from that date within which to bring a claim. For reasons which have not been investigated in this court no claim was brought until beyond that three-year period. We know that it was close to the three-year limit from January 1998 that the claimant first consulted solicitors.

23. Having reached that conclusion, the question of damages does not arise, but I deal with it briefly in deference to the submissions which have been addressed to the court by Mr Wilkinson. The item of damage which is challenged is that of special damage for loss of earnings. The judge found upon the medical evidence - and, in particular, that of Mr Hirschowitz - that upon a finding of liability the claimant was entitled to recover her full loss of earnings until August 1999 and a partial loss of earnings, amounting to one-half of her earnings, for a period of 147 weeks from August 1999 to 1 June 2002.

24. The first finding is not challenged. It is submitted that the partial award is flawed. It is submitted that the recorder has been logically inconsistent in taking one-half of the net earnings for the three-year period and then deducting from it the sum of about £3,500 for the claimant's actual earnings during that period. That is an illogical inconsistency in the defendant's favour. The main point made is that while the medical evidence was that a partial disability continued after August 1999 when the claimant had a clearance from the department - in that she passed the DSS test and was declared fit by them under what is known as the "all works" test - nevertheless there was medical evidence from a doctor that she continued to suffer a partial disability for a much more prolonged period. The judge referred to the evidence at paragraph 55 of his judgment:

"55 To this end it is clear from the report of Mr David Hirschowitz on 26 June 2001, when he says: 'I would expect her to recover to do ordinary shop work' but at the time she has not so recovered. By 11 September 2001 he says:

'My view is that Mrs Collins has already recovered to the point where she should be able to cope with ordinary shop work, perhaps on a part-time basis initially, but from a shoulder point of view full-time within a year.'

That is by 11 September 2002."

It was roughly following that approach that the damages of approximately one-half the pre-accident net earnings were awarded.

25. Mr Wilkinson makes the point that the opinion of the doctor was, in the event, based on a fallacy in that the account given to him by the claimant was inconsistent with the account given in evidence. I do not propose to refer to the evidence in detail, but in some of her answers she did refer to having made a recovery. She also referred, and Mr Wilkinson relies on this, to the fact that she had made no efforts to obtain work since February 2001. Moreover she had employment on two short occasions with Marks and Spencer. It is clear that on one occasion she gave up that work, not because of any problems in doing it, but she wished to help her husband in his business.

26. Mr Wilkinson's submission is that the claimant was entitled to no damages for loss of earnings after August 1999. If she was entitled to any, it was only for a very short period measured in two or three months to give her an opportunity to obtain work, and work was open to her by reason of her recovery.

27. I am not able to accept the submission of Mr Wilkinson. The judge found as a fact that the claimant would have "continued to work for Tesco or equivalent employer notwithstanding her problem with her knees", that is, if the injury had not been done to her.

28. In my judgment, the judge was also entitled to have regard to the medical evidence. He heard the evidence of the claimant. It is right that it did depart from the history given to the doctor. In my judgment, it does not necessarily follow that the judge must ignore the medical evidence. The doctor was not called. We have not been told whether application to call him was made on behalf of the defendant and was refused. The judge was correct, in my judgment, in his view that he was entitled to accept the evidence of the doctor.

29. I have regard also to one of the answers given by the claimant; it is that at page 65 of the bundle when she was being cross-examined as to why she had not made further efforts to obtain work. It was suggested it was because of her husband's business:

"Q Is that one of the reasons why you have not worked since February 2001?

A No. The main reason why I have not worked is because I have been told that tendonitis, once you have had it, can be recurring, so I don't want to do anything too strenuous and I am not trained for proper office work as such. I only ever worked in shops, so I need to have a re-think."

In my judgment her other answers must be read along with that one. That answer, along with the medical evidence, entitled the judge to award loss of earnings for the 147 weeks on a partial work basis.

30. In the light of that evidence the claimant would be disentitled to damages for loss of earnings on the basis awarded only if there was some wholly extraneous reason why she did not work following the injury. Not only is there the judge's finding that she would have continued to work for Tesco but, in my judgment, there is nothing from the other evidence that suggests an extraneous reason which would have broken the chain of causation between the breach of duty and the loss of earnings. In any event, the amount awarded is far from extravagant because the judge did deduct - and I give approximate figures - from the £13,500, which was the arithmetical calculation of the one-half lost, the sum of £3,500 which had been earned. That is, as Mr Wilkinson rightly says, logically inconsistent. But, in the result, the damages for that period were in the region of £10,000.

31. However one approaches the evidence and whether one considers the element - as one might, in my judgment - of loss of earning capacity during that period, the amount awarded is commensurate with the evidence, and had the claimant succeeded on liability, which she does not, I would have upheld the award of special damage.

32. For the reasons I have given, I would allow this appeal.

33. LORD JUSTICE LAWS: I agree that this appeal should be allowed for the reasons given by my Lord, Lord Justice Pill, whose account of the facts and history of the matter I gratefully adopt.

34. As the relevant legal principles have something of an elusive quality, I venture to add a view words of my own. First, as to significance, I would suggest a compendious question: is the injury bad enough, to the putative claimant's knowledge, for it to be reasonable for him or her at the point of time under consideration to start proceedings against a defendant who is able to pay the claim and will not dispute liability? Here I intend no inconsistency with the formulation set out by Lord Justice Geoffrey Lane in McCafferty at page 775 B to D. On the facts of this case as they have been explained in detail by my Lord, I am driven to an affirmative conclusion upon this question as at a date no later than 14 January 1998.

35. On attributability, I would respectfully recall what was said by Lord Justice Brooke in North Essex District Health Authority v Spargo [1997] 8 Med. LR 125, 131:

"A little earlier the judge

(I interpolate, that is the judge at first instance in that case):

"had spoken of the solicitor's perception that he needed confirmation that there was the relevant causal connection, and a little later he added that the question will, in certain circumstances, be whether a particular injury was caused by an operation or was caused by something else. In my judgment, in all these passages the judge is substituting the much tougher test of proof of causation for the much less rigorous statutory test of attributability, in the sense that the identified injury was capable of being attributed to the identified omission. The test is a subjective one: what did the plaintiff herself know? It is not an objective one: what would have been the reasonable layman's state of mind in the absence of expert confirmation? After all, the policy of Parliament, in these cases which would otherwise be statute-barred, is to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge's approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed."

36. On the approach there set out the respondent/claimant, in my judgment, knew that her injury was attributable within the meaning of Section 14 (1) (b) at a date no later than 14 January 1998.

37. As to damages, had they arisen, I agree entirely with what my Lord has said.

38. SIR MARTIN NOURSE: I agree with both judgments.

Order: Appeal allowed with the costs here and below subject to detailed assessment