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Sayers v Lord Chelwood (deceased) & Lady Chelwood, High Court, 19 December 2012

8 January 2013
The issues

Deafness – Limitation Act 1980 Section 33 – KR v Bryn Alyn Community (Holdings) Ltd.

The facts

Clifford Sayers was born in November 1946 and was 66 at the time of the Appeal. He had worked for Lord and Lady Chelwood as a forester and gardener since 1981. His work involved the occasional use of noisy equipment. After 1988, after Lord and Lady Chelwood sold off their forest, the claimant’s sole task was to look after the garden.

In May 2000 he left Lady Chelwood’s employment and worked for Express Dairies as a driver. By the time he left Lady Chelwood’s employment he was suffering from hearing loss and tinnitus.

In 2002 at Express Dairies, the claimant had a health check and the nurse who tested his hearing advised that he might be suffering from noise induced industrial hearing loss. In April 2005 the claimant went to his GP who referred him to the ENT Department at Kent and Sussex Hospital, noting that he had had considerable noise exposure in the past with various jobs that he had done.

The four years delay in commencing proceedings had made it substantially more difficult for the parties to adduce relevant evidence in relation to the first four of those issues

In the summer of 2006 the claimant saw what he described as “a big glitzy advert” for a firm of personal injury lawyers. He instructed them. They investigated in a leisurely manner, sending a letter of claim in July 2008 to Lord and Lady Chelwood. By then Lord Chelwood was deceased. In September 2009 proceedings were commenced in Wandsworth County Court. In March 2010 the defendant’s solicitors served a defence denying liability and asserting the claimant’s claim was barred under the Limitation Act 1980. The question of limitation was directed to be heard as a preliminary issue on allocation. The matter came before a deputy district judge who found the date of knowledge for the purposes of Section 14 of the Limitation Act to be December 2006. On this basis the claimant had brought his action within the three year limitation period. The deputy district judge added that if he was wrong on the point he would have exercised his discretion to allow the action to proceed. The defendant appealed to the judge.

The judge found that the claimant’s date of knowledge was 2002 when the claimant had received advice at Express Dairies. He refused to exercise his discretion. The claimant appealed to the Court of Appeal as to the exercise of the discretion.

The decision

The claimant accepted that the date of knowledge was 2002. The action had therefore been commenced four years after expiry of the primary limitation period. The claimant argued that the judge had applied the wrong test, stating that the claimant had a particularly heavy burden to satisfy the court under Section 33 and that he did not apply the criteria set out in Section 33 of the Act.

Did the judge apply the wrong test?
There was a line of conflicting authorities on the question of what test should be applied under Section 33 of the Limitation Act. In KR v Bryn Alyn, the Court of Appeal in the person of Auld LJ had given general guidance, including a statement to the effect that the burden of showing that the discretion should be exercised lay on the claimant and was “a heavy burden”. Auld LJ also referred to the exercise as “an exceptional indulgence”. In Houghton v Saddler, the House of Lords in the person of Lord Bingham, had stated that the court had to be guided by what appeared to be “equitable, which I take to be no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in sub-section 3…”

In B v Nugent Care Society, Lord Clarke had confirmed that the starting point was the Bryn Alyn case, but whilst it was correct to describe the exercise of the discretion as “an exceptional indulgence”, it was exceptional only because but for the exercise of the discretion, the claim would be time barred. He emphasised that the cases stressed that the discretion was wide and unfettered.

In A v Ministry of Defence, Lady Justice Smith giving the judgment of the Court of Appeal stated that the suggestion made in KR that the claimant lay under a heavy burden was no longer good law and emphasised the unfettered nature of the discretion.

The court did not welcome the incrustation on the simple words of Section 33 of a vast tangle of case law. It ought not to be necessary for judges in the county court to engage in textural analysis of a line of appellant decisions in order to discern whether a claimant relying upon Section 33 had a ‘burden’ or a ‘heavy burden’ to discharge. In KR, Lord Justice Auld was plainly right to say that in arguing for the discretion to be exercised, the claimant was seeking the indulgence of the court and also 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 time. Once it was established which party had the burden, it was not helpful to discuss in the abstract whether the burden was a heavy one or a light one. Following Houghton v Saddller and A v Hoare, the discretion under Section 33 was broad and unfettered. How difficult or easy it would be for the claimant to discharge the burden would depend upon the facts of the particular case. On reviewing the authorities, the view expressed by Smith LJ in AB was preferable to that expressed by Auld LJ in KR.

In saying as the judge had done in this case that the claimant had a particularly heavy burden to satisfy, the judge was applying the wrong test. Since he had applied the wrong test, it fell to the Court of Appeal to re-exercise the discretion conferred by Section 33 of the Limitation Act.

The main issues in this case were the levels of noise emitted by the power tools used by the claimant; how much work the claimant was required to do with the power tools; whether the claimant was provided with hearing protection and if so whether he wore it; what instruction the claimant was given by Lord Chelwood, if any, about the use of power tools and hearing protection; and the nature of the duty of care owed by a private or domestic as opposed to an industrial employer in relation to noise exposure and hearing protection. The four years delay in commencing proceedings had made it substantially more difficult for the parties to adduce relevant evidence in relation to the first four of those issues. An important witness for the claimant had died in June 2012. Although a witness statement existed, he would not be available for cross-examination. On the defendant’s side, the only person with knowledge of relevant events was Lady Chelwood who was now aged 90 and with each year that passed, her ability to give relevant evidence diminished. The specific equipment which the claimant used could no longer be identified. The noise levels generated could not now be determined. The Court of Appeal accepted that there would have been difficulties even if the claimant had commenced his action within the limitation period, but as a result of the delay those difficulties would be significantly greater and the evidence before the court less cogent.

The claimant had not acted promptly once he knew that he might have a claim. The steps he had taken to obtain medical and legal advice were few and leisurely. On the defendant’s side it was important to note that because of the delay, relevant insurance documents had been lost. Even though the claimant had undertaken to meet the point by undertaking not to enforce that percentage of the judgment that would have been covered by the missing insurance, that was not a complete answer since Lady Chelwood would remain liable for that proportion of her own costs. The prejudice to the defendant outweighed the prejudice to the claimant. It would be inappropriate to exercise the discretion.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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