The defendant appealed a decision allowing a claim to proceed more than ten years after it had been suffered. The claimant’s hearing had been damaged after an officer threw a thunderflash into his trench on an exercise.
Held: The defendant’s appeal was allowed. ‘If a claimant can bring himself within section 11(4)(b), then he can start his claim outside the three year period as of right: no question of any discretion or balancing exercise arises. However, if a claimant relies upon section 33, the court has to carry out a balancing exercise in order to decide whether it is ‘equitable’ to permit his claim to be brought outside the three year period. ‘ The law has changed since the Bryn Alan and McAfferty cases: ‘The test under section 14(2) is substantially objective, and is not the mixture of subjective and objective in the way in which the analysis of Geoffrey Lane LJ in the McCafferty case was interpreted as indicating in a number of cases, culminating with the Bryn Alyn case. ‘ Whether an injury is ‘significant’ within section 14(1)(a), as expanded in section 14(2), must be decided by reference to the seriousness of the injury, and not by reference to its effect, let alone its subjectively perceived effect, on the claimant’s private life or career.’ and ‘the proper approach to the question raised by section 14(2) is to consider, on the hypothesis postulated by the section, the reaction to the injury (as opposed to its possible consequences) of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes, such as intelligence aspirations aggressiveness and the like. ‘
Judges:
Ward LJ, Neuberger LJ, Tugendhat J
Citations:
Times 26-Jan-2007, [2007] EWCA Civ 17
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Not Followed – McCafferty v Metropolitan Police Receiver CA 1977
The test of whether a plaintiff had sufficient knowledge to justify the start of time running against her takes into account her subjective characteristics but then applies an outsider’s view of what she should have thought.
Geoffrey Lane LJ . .
Cited – Dobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
Cited – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 10-Jun-2003
The court considered an extension of the time for claiming damages for personal injuries after the claimants said they had been sexually abused as children in the care of the defendants.
Held: The test to be applied under section 14(2) was . .
Cited – Catholic Care (Diocese of Leeds) and Another v Young CA 14-Nov-2006
The claimant sought damages saying that he had been abused as a child whilst in the defendant’s care. The defendants appealed a finding that the claimant had not first known of his injury more than three years before begining his action.
Held: . .
Cited – Forbes v Wandsworth Health Authority CA 21-Mar-1996
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Not followed – KR and others v Bryn Alyn Community (Holdings) Ltd and Another CA 12-Feb-2003
The respondent appealed decisions by the court to allow claims for personal injury out of time. The claims involved cases of sexual abuse inflicted by its employees going back over many years.
Held: The judge had misapplied the test laid down . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Limitation
Updated: 09 July 2022; Ref: scu.248020