The meaning of knowledge: McCoubrey v MOD [2007] EWCA Civ 17 

Jason McCoubrey joined the Army in 1991. In October 1993 he was involved in an accident during a training exercise. In the course of a simulated attack on his position, an officer threw a thunderflash into his trench. This exploded about a metre away from Mr. McCoubrey, stunning him and causing ringing in his ears. Within in a day or two of the incident, he noticed that the hearing in his left ear had become significantly worse than that in his right ear. Contemporaneous medical notes indicated that he suffered from deafness, tinnitus and pain in the left ear. An ENT specialist in March 1994 recorded that he suffered form marked sensorineural hearing loss. Despite those findings, Mr. McCoubrey brought no personal injury claim against the MOD at that stage.

Audiograms over the next few years showed that his hearing loss remained fairly consistent, without further deterioration. His physical impairment had no obvious effect on his military career until August 2001, when his status was temporarily downgraded following an assessment by another consultant. He was then formally downgraded in 2003 and informed that he would not be deployed in Iraq with the rest of his unit. Realising that his Army career would be permanently blighted, he consulted solicitors and proceedings were issued against the MOD in July 2004.

The dispute

The MOD invoked a limitation defence pursuant to section 11(4)(a) of the Limitation Act 1980 (“the Act”), contending, inter alia, that the cause of action had accrued on the day of the accident and that the limitation period had therefore expired in 1996.  

Mr. McCoubrey argued that his claim had been brought in time because he did not have “knowledge” of his injury until its effect on his career became apparent in August 2001. [1]

The date of knowledge largely depends on when the injury in question is considered significant.[2]  Section 14(2) provides that:-

“…[A]n 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 judgment.”

It was contended on the part of Mr. McCoubrey that it was only when his status was downgraded that he reasonably considered that his hearing loss was “sufficiently serious” to justify instituting proceedings against the MOD. However, this assumed: -

(1)   the test of “significance” under section 14(2) was subjective; and,

(2)   In evaluating the seriousness of the injury, the court should look not only at its severity but also the effect on the claimant’s quality of life, his activities, his enjoyment, and his ability to carry out his trade, skill or profession.

Decision at first instance

After examining the leading cases, including McCafferty v The Receiver of the Metropolitan Police[3] and Dobbie v Medway Health Authority[4], both of the above propositions were accepted by Judge Cox at first instance. He went on to find that Mr. McCoubrey was reasonable in not regarding his injury as sufficiently serious until actually excluded from active service. The reason being that his employer, the MOD, had not until that time given him any cause to suspect that his career would be affected by the impairment to his hearing.

Judge Cox had based his decision largely on the case of McCafferty, where Geoffrey Lane LJ reasoned that the section 14(2) test is partly subjective (whether the claimant would have considered his injury sufficiently serious) and partly objective (whether he would have been reasonable not to regard it as sufficiently serious).[5] Obiter dicta in Dobbie also suggested that it would be appropriate to look at the effect of the injury. In particular, Sir Thomas Bingham MR (as he then was) considered that whether an injury was “significant” related solely to the quantum of the injury, i.e. whether it had caused significant loss.

The MOD appealed and the Court of Appeal took the opportunity to examine the case law on section 14(2) to determine the nature of the test.

Decision of the Court of Appeal

In allowing the appeal, Neuberger LJ examined more recent decisions relating to both section 14(2) and 14(3) of the Act. In particular he reviewed the House of Lords opinion in Adams v Bracknell Forrest BC[6] and the subsequent judgment of the Court of Appeal in Catholic Care (Diocese of Leeds) v Young.[7] In Adams, where section 14(3) was under scrutiny, the House of Lords considered that the use of the word “reasonable” imposed an objective standard. In Young it was held that the same reasoning should apply to section 14(2). Dyson LJ also emphasised that the critical question remained the seriousness of the injury, not its effect on a claimant.

Neuberger LJ agreed that the logic of these later decisions meant that the test under the latter section had changed to being substantially objective. More significantly, he went on to conclude that the question of whether an injury is “significant” should be decided only by reference to the seriousness of the injury and not its effect, perceived or otherwise, on the individual claimant. The question to be asked is as follows: -

“Whether a reasonable person in the claimant’s position, and with his knowledge of the injury, would… have considered the injury sufficiently serious to justify the institution of proceedings by [the relevant date]”

Applying this test, Neuberger LJ considered that Judge Cox had erred in taking account of Mr. McCoubrey’s of mind and aspirations when determining the date of knowledge. As he had been aware of the extent of the damage to his hearing immediately; had been diagnosed with loss of hearing, tinnitus and pain within six months; and his injury had not deteriorated since the accident, there could be no question that his date of knowledge ran from February 1994 at the latest. This meant that the claim was brought out of time. It was therefore remitted to Judge Cox for a decision on whether to exercise her discretion under section 33 of the Act to disapply the limitation period and allow Mr. McCoubrey to progress his claim in any event.

Conclusion

This case clears up any lingering doubt about the nature of the test under section 14(2) of the Act. It is a boon to defendants because it confirms that the provision has a comparatively limited application: it is meant only for claimants who are effectively unaware that they had been injured at all until a later date, or whose injury subsequently turns out to be far more serious than anticipated. This seems justified because the defendant’s ability to investigate the claim may have been prejudiced by an unreasonable delay in issuing proceedings but, if not, section 33 may operate to save the claim in any event.

It should be noted, however, that the test may work injustice in circumstances where the claimant declines to pursue a claim because the detrimental effects of a serious injury are, at first blush, only minor. He is then caught in a catch-22 situation, where if he declines to issue proceedings his claim may be statute-barred, but if he litigates immediately he runs the risk of being vastly under-compensated. In such a case, a purely objective test is likely to cause real hardship to the claimant.

Lionel Stride