Furniss v Firth Brown Tools Ltd

This is an appeal from the decision of HH Judge Swanson sitting in the Sheffield County Court on 7 July 2007. On the hearing of a preliminary issue, the judge held that the claimant’s claim for damages for noise induced hearing loss brought against two former employers had been brought out of time and was barred by sections 11 and 14 of the Limitation Act 1980; he also declined to exercise his discretion under section 33 of that Act to allow the action to proceed. The action was dismissed. The claimant appealed and permission was given by Sedley LJ. However, shortly before the hearing of the appeal, the appellant reached agreement with one of the employers, Barlows Shopfitters Ltd, as to the disposal of the claim against it. Accordingly, the appeal proceeded only in respect of the first respondent, Firth Brown Tools Ltd (hereinafter called ‘the respondent’).

At the end of the hearing, the court announced its intention to allow the appeal and to give reasons for that decision later. These are the reasons.

Section 11 of the Limitation Act provides that an action in negligence claiming damages for personal injuries must be brought within 3 years of the date on which the claimant’s cause of action accrued or of the claimant’s date of knowledge if later. Section 14 defines ‘date of knowledge’ as follows:

“14(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; and

(c)

the identity of the defendant; and

(d)

(not applicable)

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.

(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.

(3)

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 subsection 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.”

The appellant was employed by the respondent from 1976 until 1981 or 1982. Later he was employed by Barlows Shopfitters from 1990 until 1998. He did not begin his action for damages until 3 June 2006. Thus, the first question for the judge was whether the appellant’s date of knowledge fell before or after 3 June 2003. If the date of knowledge was after 3 June 2003, the claim could proceed. If the date of knowledge preceded 3 June 2003, the claim would be barred unless the judge was prepared to exercise his discretionary power under section 33 of the Act to allow it proceed on the basis that, in all the circumstances it would be equitable so to do. In the event, the judge held that the appellant had the requisite knowledge ‘by 1998’. He refused to exercise his section 33 discretion.

The appellant is now 62 years of age. Before describing his evidence, it must be recorded that it was common ground between all counsel and the judge that he was an honest witness, doing his best to remember events (such as the onset of his hearing loss) and also his state of knowledge and belief at various stages of the history. He was not seeking to tailor his evidence to suit his purposes in the action.

The appellant had first been exposed to loud noise at work while employed by the RAF in the 1960s. In about 1969, he was provided with ear plugs; his ears were tested and he was told that his hearing was normal. The judge was later to hold that, from 1969, the appellant knew that exposure to loud noise was capable of causing harm to the hearing. That finding of fact was plainly justified and was not challenged before us.

The appellant contended that his work for the respondent was very noisy and he was never provided with hearing protection. During that employment, he was quite unaware of any problems with his hearing.

His employment with Barlows Shopfitters was also noisy and in about 1995 or 1996 he was provided with ear muffs. He told the judge that he understood that if he did not wear them he might be made deaf.

After 1995, the appellant was no longer exposed to any loud noise. Nonetheless, it appears that his hearing continued to deteriorate. In 2003, he heard, from a friend, of the possibility of claiming damages for noise induced deafness. In April 2004 he went for a hearing test at the Primary Hearing Centre in Sheffield. This was for the purpose of seeing whether he could be helped by a hearing aid. He was referred to hospital where he was given a hearing aid.

During the summer of 2004, he saw an advertisement placed by a solicitor who was inviting persons who thought that they might have noise induced loss to consult him with a view to claiming damages. The claimant contacted the solicitor who arranged a medical examination with Mr A R Welch, a consultant otolaryngologist. He advised that the appellant had hearing loss and tinnitus both of which were probably caused by exposure to loud noise. Mr Welch’s report was provided on 12 September 2004.

The appellant’s evidence about when he first noticed hearing loss was somewhat conflicting. His first recorded account was given to Mr Welch who noted that the appellant said that he had experienced a gradual deterioration in his hearing over ‘the last couple of years’, which was particularly marked in the presence of background noise. He described difficulty in hearing on social occasions in background nose; he mentioned the need to have the television sound turned up and some difficulty in using the telephone and hearing the bell. He described tinnitus, which did not disturb him when he was busy and did not affect his sleep.

In his first written statement dated 31 March 2007, the appellant said that he first began to notice symptoms of hearing loss “about 6 or 7 years ago”. That would be in 2000 or 2001. He continued: “The problems were pretty insignificant then. I did not think it was a significant problem until a few years ago”. In his second written statement, dated 23 June 2007, the appellant said that he first talked about his hearing problems to a neighbour some time in 2003. He continued: “Around that time, I was aware that I was suffering from some hearing loss, but I did not know that this was a consequence of my previous employment, although I had some suspicion that there could be a link.” He then described how he had visited his GP in November 2003, to report deterioration in his hearing and was told that this was due to a build up of wax, which was then removed. In the following paragraph, he said that his hearing had deteriorated further by the early part of 2004, despite the clearing of wax. He decided therefore to seek advice from the Primary Ear Care Centre. He was examined there on 23^rd April 2004 and was advised that his hearing loss was suitable for the provision of a hearing aid. He was not told that the audiogram suggested that the hearing loss might be noise induced.

In oral evidence, in chief, the appellant expanded on this account, explaining that he had consulted his GP about wax in his ears about once or twice a year since about 1999. He also described the onset of tinnitus, in about 1998 or 1999, saying that it was a ‘low background hissing noise’ on the left side. It did not interfere with his life markedly; he could ignore it if he was concentrating on something and it did not disrupt his sleep. He had assumed that it was either hereditary (as his mother suffered from it) or that it might be associated with stress as he was having a stressful time (trying to run a failing business) when the tinnitus began.

In cross-examination, Mr Robinson for Firth Brown Tools established first that the appellant must have been aware since the late 1960s that exposure to loud noise is capable of causing harm to the hearing. He then turned to the date of onset of hearing loss and demonstrated that, in the Reply, which dealt with issues of limitation, the appellant’s counsel had pleaded that the appellant had first developed symptoms (which he now attributed to the effect of noise) in about 1996 or 1997. I interpose to say that it is not clear where the assertion in the Reply had come from because I have already set out what the appellant had said in his witness statements. When shown the Reply, the appellant said he could not remember having hearing problems in 1996 or 1997 but, when shown that his signature on the statement of truth at the end of the Reply, he accepted that it was his. Immediately after that, Mr Robinson began to ask about the type of symptoms the appellant had experienced when they first started. The appellant agreed that his first problems were that he could not hear the telephone as well as others and his wife began to complain that he wanted the television turned up louder than she did. It was then put to him that he was experiencing these symptoms in the period 1996 to 1998 but he said he was not certain of that. When pressed, he agreed that it was around that time but asserted that he was putting the symptoms down to his ear wax. It was put to him that he had visited his GP fairly regularly and that there was nothing to have stopped him asking his GP whether the fact that he had worked in noise without hearing protection might have made a difference to him. He said that he had not thought about it. The Judge intervened to ask whether he had not thought about asking the GP if some of the hearing loss might be due to noise. The appellant said that he had not; he had “put it down to getting a bit older and ear wax”. Mr Robinson put it to him that he had behaved like an ostrich with regard to his hearing loss in 1998. But the appellant repeated that he had put ‘it’ down to age and wax. When it was pointed out to him that his tinnitus would carry on whether or not he had had wax removed from his ears, he said that he could not hear the tinnitus much when he had wax in his ears and anyway he could ignore it. And he repeated that he had thought his tinnitus was hereditary.

Miss Foster, who cross-examined the appellant for Barlows Shopfitters, sought to establish that his hearing problems had come on gradually over a period of time, with which he agreed. He also agreed that, to start with, the deficit had been quite small but it had become worse and worse as time went on. And he agreed that it was difficult for him to pin point dates. Reminding him about what he had been pleaded in the Reply, Miss Foster put it to him that he was aware of hearing problems in about 1995 or 1996 and he agreed, adding that he assumed the problem was due to wax. She put it to him that he must have realised at that time that his symptoms might be caused by noise exposure; he had recently been provided with ear muffs. He said that he had not but, when pressed, he agreed that it might have crossed his mind. But he insisted that he thought his problems were related to wax. Then counsel asked him:

“So here you were in Tinsley, problems with your hearing, you’d been provided with hearing protection, you were working in a noisy environment, of course it occurred to you that your problems might be due to your work, didn’t it?”

Miss Foster then suggested to him that, although it might have occurred to him that his hearing loss might be due to his work, he had never been to his GP about it because he was not ‘a complainer’. He said he had not complained; he thought ‘it’ was something that one had to put up with as one got older in working life.

In re-examination, counsel sought to clarify what the appellant had meant when he had told Mr Welch in 2004 that his hearing had deteriorated over the previous two years. The judge intervened and asked whether what he had been telling Mr Welch was that, over the previous two years his hearing had got worse than it had been before that time. The appellant replied: “It has got slightly worse, yes”.

I draw attention in passing to the fact that the appellant was never asked whether he thought that his tinnitus might have been caused by noise or whether he ever associated it with his hearing loss. I also note that at no stage was the appellant asked whether he still experienced hearing loss immediately after he had had his ears syringed.

It was common ground at the hearing that the appellant had actual knowledge for the purposes of section 14 as from the date of Mr Welch’s report. Although in his judgment, the judge suggested that he might have had actual knowledge from April 2004, there was no evidence to support such a finding. In any event, the finding was immaterial because the real question was from what date the appellant was fixed with constructive knowledge that he had a significant injury and that the injury was attributable in whole or in part to exposure to noise at work.

The judge considered the evidence and findings of fact. At paragraph 19 of the judgment he said:

“I find on the evidence given by the claimant himself that he knew that he had tinnitus …. in 1998. I find that he first noticed the hearing loss, I take it and find, that this is a hearing loss independent of the wax in 1996 or 1997 and I take it that he knew from the late 1960s that it was possible for noise to cause injuries to hearing”.

Then in paragraph 20, he reiterated those findings and reached his conclusion as follows:

“I do find that he did notice a hearing loss independent of the wax in 1996/97 and that he had enough knowledge of the possibility of noise affecting hearing for him to have associated that with his work. He said he possibly did associate it with his work and I do find that he did associate it with his work in 1996 or 1997.

21.

I therefore find that the Defendants have made out on balance that the Claimant had constructive knowledge – well by 1998 anyway, when he then knew that he had hearing loss and had had tinnitus.”

The skeleton argument drafted by trial counsel for the purpose of this appeal relied mainly on the judge’s approach to section 14(3) of the Limitation Act. It was said that the judge had not considered when the appellant ought reasonably to have taken expert advice. Mr O’Leary, who took over the conduct of the appeal at short notice, sought to argue first that the judge’s crucial finding of fact (that the claimant knew in 1996/97 that he had hearing loss independent of wax) had been unsupported by evidence. He took us to the actual words of the evidence given, which I have already set out or paraphrased. I have not reached any concluded view as to this point and do not need to do so for reasons which will become apparent. The evidence was certainly not clear and I was particularly concerned as to how the judge could have properly concluded that the appellant knew in 1996/97 that he had hearing loss independent of wax. He was never asked in relation to that period whether he had noticed that he had still had some hearing loss even after he had had the wax removed. The only period in respect of which he spoke about hearing loss independent of the wax was in 2004. He said that was why he went to the Hearing Centre.

However, in the course of this examination of the evidence, Lord Justice Laws observed that the judge did not appear to have made any finding at all as to when the appellant knew that his hearing loss was significant. Under section 14, a claimant does not have ‘knowledge’ until he knows that the injury in question was significant. There was no reference in the judgment to when the appellant knew or ought (with expert advice which it was reasonable for him to seek) to have known that his injury was significant, in the sense set out in section 14(2), namely, when the appellant would reasonably have considered the injury to be sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

Mr O’Leary adopted that point. It was apparent from the passages which I have quoted from paragraphs 19 to 21 of the judgment, which are the only ones in which the judge made findings of fact or expressed conclusions of law in respect of section 14, that the judge had not dealt with the question of when the appellant knew or ought to have known that his injury was significant. Mr Robinson for the respondent agreed that that was so.

The focus of the appeal then shifted to the question of whether, if the judge had dealt with that point, the evidence would have been so clear as to admit of only one conclusion. Mr O’Leary submitted that the only evidence on the question of seriousness was that, when the symptoms first began, they were ‘pretty insignificant’. It seems to me that that evidence had been underlined by Miss Foster’s cross-examination to the effect that the symptoms came on gradually over a period of time.

Mr Robinson submitted that there was other evidence from which it was inevitable that the judge would have found that, if he had taken expert advice which it would have been reasonable for him to take, the appellant would have known by about 1998 that his injury was significant. He pointed first to the evidence that, when the symptoms began, they manifested themselves by difficulty with using the telephone and a need to have the television sound turned up. However, it seems to me that when that evidence was put in context, it was by no means clear that the appellant was agreeing that he had those problems as early as 1996/97. He had agreed with those dates as the time at which his problems began because of what was pleaded in the Reply. In any event, I am not sure that such problems would of themselves sufficiently support the conclusion that the injury was significant in the sense of justifying the commencement of an action for damages.

Mr Robinson’s second submission was that the mere fact that the appellant was speculating about what might have caused his problems (wax and advancing years in the case of the hearing loss and hereditary factors or stress in relation to the tinnitus) demonstrated that he well knew that the symptoms were significant. I cannot accept that submission. It seems to me that it is entirely natural that, when a person is suffering from symptoms which cause only minor inconvenience, he will brush them to one side, with or without some private explanation to himself as to what is giving rise to the problem. It may be that, if a person is particularly anxious, litigious or even suffers from a degree of hypochondria, he might well seek medical or legal advice about a minor problem which most ordinary people would just brush aside. But the Limitation Act provides that the test for when a person is to be fixed with knowledge that his injury is significant is based upon what it was reasonable for him to think and do, given the facts of which he was aware. That is to be decided objectively by the judge applying the standards of the ordinary reasonable man. In my judgment, it cannot be said that, as soon as a man is aware of some minor inconvenience in respect of his hearing, he is to be fixed with the knowledge that he would acquire if he immediately took expert advice.

It seems to me that the evidence in the present case does not lead to a clear conclusion. I do not think that, if the judge had dealt with the question, he would have been bound to find that, by 1998, the appellant knew or ought (if acting reasonably) to have discovered that his hearing loss was significant. Indeed, so far as 1998 is concerned, I would have thought there was scant evidence to support the proposition. If I were asked to consider whether there was a date by which I could properly hold that the appellant had knowledge that his injury was significant (as defined by section 14(2)), I would say that it would be difficult to reach any firm conclusion; the point was not sufficiently explored in evidence. Accordingly, because the burden of proof under section 14 lies on the respondent, I conclude that that burden has not been discharged. The defence under sections 11 and 14 has not been made out.

That being so, it is unnecessary to consider the alternative ground under section 33 on which the judge decided the matter. I do not propose to lengthen this judgment by a detailed discussion of the issues. Suffice it to say that the respondent relied on prejudice in the conduct of a trial resulting from the fact that all the documents relating to the respondent’s operations at the premises where the appellant had worked had been destroyed when the business closed in 1991 or, if not then, certainly by the time the premises were demolished in about 1995. The appellant made the obvious point that these documents would not have been available however quickly he had brought proceedings. Yet the judge relied on the alleged prejudice in his judgment. For that reason, it does seem to me that his decision was open to criticism. However, I need say no more than that because the point is academic in view of my conclusion on section 14.

I agree with both judgments

I agree. The course of this somewhat unusual case demonstrated the need for trial judges to address and to make findings on each of the elements that arise under section 14. Often, one or other of those elements may appear to be obvious; and so it may usually be said of the question of whether the undemanding test for significance under section 14(2) is fulfilled. But this case is unusual because of the overlapping and competing sources of hearing loss: natural deterioration; wax; and the respondents’ alleged negligence. The judge therefore had to decide, for section 14(2) purposes, when disability springing from the last of those causes had been perceived by Mr Furness to have reached a level which a reasonable person would have considered sufficiently serious to justify proceedings. The judge never identified that as a separate question; and as my Lady has demonstrated, it was impossible from the evidence to determine what his answer must have been had he asked himself the question. In those circumstances Mr Robinson, recognising that the burden of establishing the date of relevant knowledge rested on him, very properly accepted that the appeal must succeed.

I respectfully agree also with the concern expressed by my Lady in her paragraph 28 about the judge’s reasoning on the section 33 issue. Like her, however, I accept that it is not necessary to pursue that enquiry further.