The Court of Appeal has recently reviewed the principles of s.33 of the Limitation Act in the context of an employer’s liability claim brought by an undercover police officer against Greater Manchester Police.
The claimant was an undercover police officer who alleged that the defendant was liable in damages for the injury, loss and damage suffered by him as a result of the negligence and breach of several Regulations, including, The Management of Health and Welfare Regulations 1999, The Workplace (Health Safety and Welfare) Regulations 1992, The Control of Substances Hazardous to Health Regulations 2002 and The Personal Protective Equipment Regulations 1992, by those for whom the defendant was vicariously liable.
The injury pleaded was addiction to heroin, as a consequence of which the claimant suffered from the symptoms of the opioid use and depression.
The claimant alleged that in the spring of 2008 the defendant had made him a member of a new team established to carry out undercover drug investigations. The role included working undercover and posing as a drug user to make test purchases. During February 2009 whilst on a placement, the claimant alleged he was required to purchase heroin and transport it in his mouth. He claimed that this would make him feel unwell and that this, as well as being exposed to drugs smoked in his presence by users, made him particularly susceptible to later drug addiction.
In May 2009, the claimant was instructed to attend a training day. The door and windows of the room in which the training session took place, were closed and a large block of heroin was handed around the room. The claimant and other participants handled and were encouraged to smell it. This caused the claimant’s hands to become smeared in heroin dust. The claimant also alleged that he was given a piece of aluminium foil with a piece of heroin on it and was encouraged to use a cigarette lighter to heat the heroin which released a vapour that the claimant then inhaled. As a result the claimant inhaled the heroin vapour from the heroin he had burned and the heroin vapour which was in the atmosphere in the room generally as a result of other officers performing the same exercise.
Following the training day the claimant started to purchase and take heroin and become a heroin addict.
The claimant left the undercover unit and returned to normal duties in November 2009. From September 2009 until January 2012 the claimant sought help with his drug addiction from a local authority project aimed at supporting those with drug addictions. In February 2012 the claimant was diagnosed as suffering from anxiety and depression. In July 2012, the claimant was suspended from duty. In November 2013, the claimant entered pleas of guilty for theft and was imprisoned for 14 months and was subsequently dismissed from the police force.
The claimant alleged that the negligence and the breaches of the regulations caused him to become addicted to heroin or alternatively made a material contribution to his becoming a heroin addict, but for which he would not have been convicted of the offences which led to his imprisonment and his dismissal from the police force. It was alleged that the addiction caused the claimant to suffer from moderate to severe depression, with a fluctuating mood state with sleep disturbance, poor appetite, loss of weight and loss of libido together with anhedonia, loss of motivation, suicidal ideation and a sense of hopelessness.
The defendant denied all allegations of negligence, breach of statutory duty and breaches of the regulations as well as making a claim for contributory negligence.
The defendant alleged that the limitation period started on or close to 6 May 2009 (at the time of the training attended by the claimant) and therefore expired on or close to 6 May 2012 and the claim, which was not issued until 4 November 2013 is therefore outside the three year limitation period applicable under LA 1980 s. 11 and 14.
In March 2015, DDJ Carter ordered the trial of a preliminary issue as to whether the claim was statute barred, including whether there should be a discretionary exclusion of the time limit under LA 1980 s.33.
The trial took place before HHJ Armitage QC in July 2015.
First Instance Decision on Limitation
The Judge accepted that the injuries, for which the claimant claims damages, occurred in 2008 or 2009 and that the claimant’s causes of action in respect of those injuries accrued at or about that time. However, the question was whether or not the claimant’s date of knowledge for the purposes of s.11(4) of the LA 1980, was indeed later than this.
As a reminder, s.11(4) states:
‘Except where subsection (5) below applies, the period applicable is three years from –
a)The date on which the cause of action accrued; or
b)The date of knowledge (if later) of the person injured’.
S.14 states that a person’s date of knowledge are references to the date on which he first had knowledge that:
(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)if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
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.
The defendant argued that the threshold of significant injury is relatively low. The judge accepted this argument and stated that at the relevant time the claimant was ‘generally aware of the unwanted effects of heroin and cocaine’. Indeed, the notes of the claimant’s GP showed that by June 2009 the claimant had made a connection between ingesting heroin in the course of his employment in May 2009 and his drug addiction. However, it is important to note that the claimant’s claim was founded on an eventual diagnosis of a psychological injury which was not made until 16 February 2012.
However, despite this diagnosis the doctor was not able to relate the health issues to the claimant’s misuse of hard drugs because the GP was not told about the claimant’s drug use.
This raises the unique question, which the Court of Appeal noted, does not usually arise in an employer’s liability claim: Was it unreasonable for the claimant to seek advice, a diagnosis and treatment on incomplete information?
On this point, the Judge at first instance had concluded that the claimant would have been perfectly capable of working out for himself that what he was doing might have been making him feel ill. However, beyond that, he could not know that he was suffering from a recognised psychological condition without medical assistance. As such he concluded at para 20: ‘I am satisfied that he did not have and did not act unreasonably in not obtaining that advice until at least the GP’s diagnosis in 2012’.
First Instance Decision: s.33
Despite this conclusion, the judge still went on to consider whether, had he come to the alternative conclusion, he would have exercised his discretion under LA 1980 s.33.
The Judge considered the relevant factors under s.33(3) which are:
‘(3)In acting under this section the court shall have regard to all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c)the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received’.
Considering these factors in line with the claimant’s case, the first instance judge made the following observations:
- Even on the defendant’s analysis of this case, there had been a delay of only 12 months.
- It could be argued on behalf of the claimant that much of the delay had occurred because of who he was and the consequences of revealing what he was doing.
- Although recollections would be less crisp than they would have been had the action been started in 2009, this would not prejudice the defendant more than the claimant.
- There had been very little delay by the claimant once he knew whether or not the act or omission of the defendant, to which the injuries were attributable, gave rise to an action for damages.
- The claimant did seek medical advice but was unable to tell the GP about his drug use (for good reason).
As such he would have concluded that, despite some potential prejudice arising from loss or destruction of documents, the delay in the case had not been so prejudicial that it would be inequitable to allow the action to proceed and therefore he would have disapplied the relevant limitation period for the cause of action.
The defendant appealed both the conclusion in relation to s.14 of the LA 1980 and also the judge’s determination of the s.33 issue.
Shortly before the hearing of the appeal, the claimant conceded that as of September 2009 he knew his addiction was capable of being attributed to his employment and so a diagnosis could have been made by December 2009 and therefore this should be his deemed date of knowledge.
However, the claimant opposed the appeal in relation to the discretion exercised under s.33.
Sir Terence Etherton, handing down judgment in the Court of Appeal, noted that when exercising its discretion under s.33, the Court must have consideration of the all the circumstances of the case but also, the list of factors in s.33(3)(a)-(f).
He helpfully summarised the application of this statutory direction in 13 guiding principles at para 42 as follows:
‘1) Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: Sayers v Lord Chelwood  EWCA Civ 1715  1 WLR 1695, at .
2) The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan v Gwentoys Ltd  1 WLR 472 at 477E.
3) The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.
4) The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: Sayers at .
5) Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant: Burgin v Sheffield City Council  EWCA Civ 482 at . If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: Hammond v West Lancashire Health Authority  Lloyd’s Rep Med 146.
6) The prospects of a fair trial are important. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to Judgment Approved by the court for handing down. GMP -v- Carroll assist the court in deciding what was done or not done and why. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents.
7) Subject to considerations of proportionality (as outlined in (11) below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: Cain v Francis  EWCA Civ 1451,  QB 754, at .
8) It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weigh. The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified. The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: Collins v Secretary of State for Business Innovation and Skills  EWCA Civ 717,  PIQR P19, at .
9) The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones that may tip the balance in the other direction: Cain at . I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defendant the claim.
10) Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: Corbin v Penfold Company Limited  Lloyd’s Rep Med 247.
11) In the context of reasons for delay, it is relevant to consider under sub-section 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period.
12) Proportionality is material to the exercise of the discretion. In that context, it may be relevant that the claim has only a thin prospect of success, that the claim is modest in financial terms so as to give rise to disproportionate legal costs, that the claimant would have a clear case against his or her solicitors and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability.
13) An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: KR v Bryn Alyn Community (Holdings) Ltd  EWCA Civ 783’.
Turning to the facts of the case, the Court of Appeal were unanimous in upholding the first instance decision.
Sir Etherton rejected the defendant’s submission that the claimant’s case was a weak one and therefore it would be disproportionate to exercise the discretion in this instance. He stated:
‘So far as concerns the legal strength of the claim, it would be entirely inappropriate at this stage to conduct a mini-trial on very limited evidence. It cannot be said that the claim is so weak or inherently implausible that it could be struck out or dismissed on summary judgment’.
Further, he pointed out that the test on appeal was not so much proportionality but rather whether the decision is flawed by an error of principle or is wrong, in the sense that it is outside the bounds of any legitimate exercise of judicial discretion. The defendant had not satisfied this test based on the points raised in its defence.
As such the appeal was dismissed.