Limitation of action – Exercise of discretion

Sayers v Lord Chelwood and another: Court of Appeal, Civil Division (Lady Justice Arden, Lord Justices Jackson and Kitchin): 19 December 2012

In 1981, the claimant began work for the defendant married couple as a forester and gardener. That work involved, on occasion, the use of noisy equipment. In 1988, the defendants sold the forest, rendering the employment of the claimant that of gardener only. In May 2000, the claimant's employment by the defendant ended and he took up work as a delivery driver. At the time the claimant's ceased work for the defendants, he suffered from hearing loss and tinnitus.

He alleged that he had told the second defendant of that problem prior to 1989 and that she had replied that she had similar problems. In 2002, the claimant attended a periodic health check arranged by his new employer at which he was informed that he might be suffering from noise-induced industrial hearing loss. In 2005, the claimant was referred to hospital by his GP. The hospital arranged for the claimant to be fitted with a hearing aid and to receive hearing therapy. In June 2006, the claimant attended a review appointment at hospital.

Although his ears were clean and healthy, the claimant suffered from bilateral high-frequency hearing loss. The doctor recorded that the claimant had tinnitus and hearing loss following noise exposure at work. In October 2006, the claimant instructed a firm of solicitors to pursue a claim for personal injuries sustained during his employment by the defendants. In July 2008, the solicitor sent a letter of claim to the defendants. The first defendant was, by that time, deceased and the claim proceeded as if it had been made against his estate. In September 2009, the claimant commenced proceedings in the county court.

In January 2010, his claim form was served together with particulars of claim. The defendants denied liability and asserted that the claim was barred under section 11 of the Limitation Act 1980 (the 1980 act). The question of limitation was tried as a preliminary issue. The district judge held that the claimant's date of knowledge for the purposes of section 14 of the 1980 act was December 2006, since that was when his solicitor had advised him that he could bring a claim. Accordingly, the claimant had commenced his action within the three-year limitation period. The defendants' appeal to a circuit judge was allowed.

The judge held that the claimant's date of knowledge had been 2002 when he had undergone a health check. He further held that the claimant had a particularly heavy burden to satisfy the court under section 33 of the 1980 act that it should exercise the its discretion and allow the action to proceed after such a long delay and, in the circumstances, it was not appropriate to exercise that discretion. Consequently, the claim was dismissed. The claimant appealed.

He accepted that the date of knowledge had been 2002, and his action had, therefore, been commenced after the expiry of the limitation period. However, he contended, the circuit judge had erred in failing to exercise his discretion under section 33 of the act in his favour and, if the court found that he had so erred, that it should exercise its discretion afresh in his favour. Consideration was given to a line of authorities beginning with KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2004] 2 All ER 716 (KR). The appeal would be dismissed.

There was no doubt that if a claimant commenced proceedings out of time and asked the court, in the exercise of its discretion under section 33 of the 1980 act, to disapply sections 11, 11A or 12, then the burden was on the claimant to persuade the court by evidence and argument that such a direction was appropriate. Auld LJ had been plainly correct in KR to say that such a claimant was seeking the indulgence of the court. Auld LJ had also been correct to say that such indulgence was exceptional, in the sense that the claimant was seeking an exemption from the normal consequences of failing to commence proceedings within the limitation period.

Once it was established which party had the burden in relation to a particular issue, it was not helpful to discuss in the abstract whether that burden was a heavy one or a light one. The comments in Horton v Sadler and A v Hoare that the court's discretion under section 33 of the act was broad and unfettered made it difficult to maintain that the claimant's burden under section 33 was necessarily a heavy one. How difficult or easy it was for the claimant to discharge the burden would depend upon the facts of the particular case. All that could be said in relation to section 33 at a level of generality was that the burden was on the claimant. The view expressed by Smith LJ at [96] of AB v Ministry of Defence that the burden of proof lay on the claimant was to be preferred to that of Auld LJ at [74(ii)] of KR, which stated that the burden was a heavy one (see [53]-[56], [70], [71] of the judgment).

In the instant case, the judge, in stating that the claimant had a 'particularly heavy burden' to satisfy the court under section 33 of the act had applied the wrong test. He ought simply to have said that the burden was on the claimant. Since the judge had applied the wrong test, it fell to the instant court to re-exercise the discretion conferred by section 33 of the act. The task of the court under section 33(1) was to weigh up (i) the prejudice to the claimant if his claim was barred by section 11 of the act and (ii) the prejudice to the defendant if the action was allowed to proceed despite having been started out of time. In the circumstances of the instant case, the prejudice to the defendants under that second limb outweighed the prejudice to the claimant under the first limb (see [57], [58], [68]-[71] of the judgment).

AB v Ministry of Defence 117 BMLR 101 applied; KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2004] 2 All ER 716 considered; Horton v Sadler [2006] 3 All ER 1177 considered; Kew v Bettamix Ltd (formerly Tarmac Roadstone Southern Ltd) [2006] All ER (D) 173 (Nov) considered; A v Hoare and other appeals [2008] 2 All ER 1 considered; AB v Nugent Care Society; R v Wirral Metropolitan Borough Council [2009] All ER (D) 308 (Jul) considered; McDonnell v Walker [2009] All ER (D) 259 (Nov) considered; Davies v Secretary of State for Energy and Climate Change [2012] All ER (D) 320 (Oct) considered.

Simon Mallett and Guy Coleman (instructed by Wixted & Co Ltd) for the claimant; David Platt QC and Patrick Blakesley (instructed by Berrymans Lace Mawer LLP) for the defendants.