Shoulder Injury Compensation Claim

Collins V Tesco (2003)

Personal Injury - Limitation

CA (Pill LJ, Laws LJ, Sir Martin Nourse) 24/7/2003

LTL 24/7/2003 EXTEMPORE (Unreported elsewhere)

Document No.: AC9501031

For the purpose of s.14 Limitation Act 1980, an over-elaborate approach to the question of knowledge was inappropriate: the test did not allow for consideration of a claimant's readiness to resort to litigation.

Defendant's ('T') appeal from the decision of HH Judge O'Dwyer on 22 November 2002 to award damages to the claimant ('C') for injury to her right shoulder resulting from T's breach of duty. C had been employed by T as an assistant in a petrol kiosk, and was required to restock goods she collected from a nearby store using a metal cage. C alleged that she had sustained injury to her right shoulder as a consequence of T's breach of duty to her. C had first experienced pain in her shoulder in late 1996, and had continued to work until 26 June 1998, after which she could only return to work for short periods. On 14 January 1998, C had consulted a consultant rheumatologist.

On 26 June 1998 C consulted a physiotherapist, who said that the strain in her shoulder was caused by heavy lifting. C issued proceedings on 26 January 2001. T raised the defence of limitation on the basis that C had knowledge for the purpose of s.14 Limitation Act 1980 at the latest by 14 January 1998, more than three years before proceedings had been commenced. The judge found that:

(i) the test of whether C had knowledge of her injury was both a subjective and objective test;

(ii) it was reasonable for C to adopt a wait-and-see approach to her injury to see whether the ache in her shoulder would subside with rest;

(iii) C became aware that her injury was significant from the time of her appointment with the physiotherapist; (iv) C's awareness that moving the metal cages caused pain did not mean that she knew that her injury was attributable to her work; and

(iv) following the meeting with the rheumatologist C had expected the symptoms to go away with rest. T argued that:

(a) on C's own evidence, the only proper finding was that C had knowledge that her injury was significant by 14 January 1998;

(b) the judge wrongly placed reliance on C's stoicism; and

(c) the judge had confused the question of the diagnosis of the injury with the question of knowledge of a causal connection between the symptoms and the work.

HELD: (1) An over-elaborate approach to the question of knowledge was inappropriate. The test did not allow for consideration of a claimant's readiness to resort to litigation.

(2) The word "significant" had to be approached in a common sense way. While the effect on a particular claimant might be a factor, the test was an objective test.

(3) On the evidence, the only conclusion that could properly be reached was that by January 1998, C had knowledge of a significant injury.

(4) Regarding C's evidence as a whole, the link necessary to establish knowledge in the attributability sense was present by January 1998. (per Laws LJ) Regarding significance, the question was whether the injury was bad enough for it to be reasonable for the injured party to start proceedings. As to attributability, this court agreed with what Brooke LJ had said in Spargo v North Essex District Health Authority (1997) 8 MLR 125 at p.131.

Appeal allowed.

Richard Wilkinson instructed by Morgan Cole for T. John Coughlan instructed by Merricks for C.