McCoubrey v Ministry of Defence

LORD JUSTICE WALLER: This is a renewed application for permission to appeal a judgment of HHJ Cox after refusal on the papers by Ward LJ. On 17 March this year HHJ Cox gave judgment on a preliminary issue in a personal injury accident commenced by Jason Stuart McCoubrey, a serving soldier; that action being against the Ministry of Defence. By his points of claim the claimant asserted that on or about 15 October 1993, while on a training exercise, an unnamed NCO threw a thunderflash very close to him, and he would say too close to him, which resulted in noise induced deafness on his left side.

The claimant did not issue any proceedings until 21 July 2004. The Ministry of Defence took in their defence a limitation point. That would be a complete answer to the claimant's case unless, as the claimant asserts, he did not have knowledge that he had suffered significant injury until late 2001, or unless the court was prepared to extend time, in the exercise of its discretion, under section 33 of the Limitation Act 1980.

A limitation issue was ordered to be tried as the preliminary issue. The judge decided that the claimant did not have knowledge that his injury was significant until late 2001 and on that basis did not consider the section 33 point.

The grounds of appeal are fourfold and were these:

Ward LJ refused permission on paper. His reasons were, in essence, that the judge had in mind the appropriate passages in the authorities, in particular a case called McCafferty v Metropolitan Police Receiver [1977] 1 WLR 1073 and a case called Dobbie v Medway Health Authority [1994] 1 WLR 1234. Thus he was of the view that the judge had not erred in her approach to the law and he then pointed to paragraph 96 as a finding of fact as to the claimant's perception of his injury, and to the reasonableness of that view on the conclusion the judge had reached in paragraph 101. He thought that section 14(3) did not add much since constructive knowledge was not in issue.

That refusal of permission was criticised by Mr Tam in his statement for the purposes of this hearing. His criticism really comes to this: he says that the test of significance has been placed by the judge at too high a level. He says that the judge failed to concentrate on the quantum of the injuries sustained. He submits that the authorities show that it is the quantum of the injury which must be kept in mind by the judge when applying section 14(2). He also says that she took into account immaterial factors, those including, he would suggest, the employment related issues as to why the claimant might not have brought proceedings.

I confess, for my part, I have not found this an easy application because, as it seems to me in one sense, the judge clearly did direct herself in accordance with the authorities as to the subjective aspect and then directed herself in relation to the objective aspect. However, the difficulty is accentuated by the facts of the McCafferty case and it is on this which Mr Tam has relied before us. The McCafferty case concerned again deafness and the deafness did not increase over the period with which the case was concerned. The Plaintiff's evidence in that case was that he found at first his deafness an irritation and that is why he had not commenced proceedings before. However, the Court of Appeal were of the view that since the injury to the hearing of the Plaintiff, McCafferty, was worth a significant sum in general damages, the fact that he thought it was an irritation did not mean that it was not a significant injury for the purpose of these provisions of the Limitation Act.

It could be said that some of the later cases cast some doubt on whether it is not possible to have quite a serious injury at an earlier stage in relation to which a claimant or Plaintiff does not think it right to commence proceedings, for example, KR v Bryn Alyn Community Ltd [2003] EWCA Civ 85 would lend some support to that view. It could be said, indeed, that a passage in the judgment of Sir Thomas Bingham in Dobbie would also support that view, although the passage in Dobbie, as Mr Tam himself pointed out, also suggests the quantum of the damage is a matter which needs to be relied on.

In the end, as it seems to me, it would be wrong to deny the Ministry of Defence the opportunity of arguing that the judge applied the wrong test to "significance" in this case. It seems to me that on the authority of McCafferty itself it must be conceded that there is a reasonable prospect of success on the section 14(2) point.

Perhaps unfortunately, the judge did not herself go on to consider section 33 because in relation to certain points raised with him by us, his argument has been that they were not points which assisted the claimant under section 14(2), but were points which would have to be considered under section 33.

As it seems to me, although the judge did not consider the section 33 point, it would be convenient if it is possible for the Court of Appeal, who has to consider the section 14 point, to consider the section 33 point as an alternative at the same time. Of course that must be very much left to the court that has to consider the matter. All one can say is that in McCafferty that is what the Court of Appeal effectively did, although the statutory provisions were different in those days. Any assessment of the time which this appeal might take should take into account the strong possibility that section 33 may have to be argued in the alternative, but, for the reasons I have endeavoured to give, I would grant permission to appeal in this case.

LORD JUSTICE LONGMORE: I agree. Mr Tam arrived to find a comparatively hostile court to his submissions this morning. He was on his feet for about 40 minutes altogether facing a number of questions, but at the end of that time it seems to me impossible for us to say that the points that he has been making are not even arguable. Therefore I agree with my Lord that we ought to give permission to appeal. I also agree that the time estimate for the appeal should allow for the possibility of argument on the question of section 33.