B3/2004/2451 
Neutral Citation Number: [2005] EWCA Civ 482
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM SHEFFIELD COUNTY COURT 
(HIS HONOUR JUDGE SWANSON) 
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 14th April 2005
 
B E F O R E:

LORD JUSTICE WARD 
 LORD JUSTICE CLARKE 
LORD JUSTICE WALL 
 
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BRYAN BURGIN 
Respondent/Claimant 
-v-

THE SHEFFIELD CITY COUNCIL 
Appellant/First Defendant
and

SFE UTILITIES SERVICES PLC 
Second Defendant 
 - - - - - - -
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
 - - - - - - -
ANDREW LEWIS (instructed by Messrs Capital Law, Messrs Beresfords) appeared on behalf of the Respondent/Claimant
IAN GROOM (instructed by Sheffield City Council Legal & Administrative Services) appeared on behalf of the Appellant/First Defendant 
- - - - - - -
J U D G M E N T
Thursday, 14th April 2005 
LORD JUSTICE CLARKE:  
Introduction:  
1.	This is an appeal brought with the permission of Pill LJ against a decision of HHJ Swanson in the Sheffield County Court in which he exercised his discretion under section 33(1) of the Limitation Act 1980 ("the Act") to permit the respondent to continue with this action against the appellant.   
2.	The respondent is 64 years of age.  In this action he claims damages against two former employers.  The first defendant is the appellant, the Sheffield City Council, by which the respondent was employed for some 28 years between 1964 and 1992 when he was made redundant.  I shall call the appellant "the Council".  The second defendant is SFE Utilities Services plc, by which the respondent was employed between 1994 and 2001.  
3.	The respondent's case is that he suffers Vibration White Finger ("VWF") as a result of the negligence or breach of duty of both defendants.  I shall continue to use the expression "VWF", although Mr Lewis informs us that we should really refer to "HAVS", which is a short for Hand/Arm Vibration Syndrome.  The claim form was issued on 20th March 2003.  The second defendant accepts that the respondent's claim was brought in time, whereas the Council says that it is time-barred.  
4.	On 4th November 2004 the Judge heard and determined the question of time bar as a preliminary issue between the respondent and the Council.  The second defendant played no part in that debate.  The action will thus proceed against the second defendant, whatever the result of this appeal.  The Council says that the Judge erred in principle or was plainly wrong in allowing the action to proceed against it under section 33 of the Act.  
The Statutory Framework:  
5.	By section 11(4) of the Act the relevant limitation period in an action of this kind for personal injuries for negligence or breach of duty is three years from the date the cause of action arose or, if later, the "date of knowledge" of the person injured.  So far as relevant to the facts of this case, by section 14(1) of the Act, a person's date of knowledge is the date on which he had knowledge of the following facts: (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.  
6.	By section 14(2), an 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 a judgment.  
7.	Section 14(3) provides:
"For the purposes of the section a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him, or from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."  

8.	Section 33 provides, so far as relevant:
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) the provisions of section 11 ... of this Act prejudice the plaintiff or any person whom he represents; and 
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; 
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
 
"(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 withing the time allowed by section 11 ... 
(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."
 
The Decision of the Judge:  
9.	The conclusions of the Judge may be shortly summarised as follows.  There was evidence that while employed by both the Council and the second defendant the respondent used vibratory tools which, as the Judge put it, it is well-known can cause VWF if used for any length of time without any kind of protection.  By 1989, and perhaps as early as 1986, the respondent first had symptoms of tingling and numbness in his fingers in cold weather.  By 1992 he was suffering from all the symptoms of VWF.  In the mid-1990s, about 1995, he was talking to a fellow employee of the second defendant when he first heard of VWF as such.  He said in evidence that the description of VWF given to him matched his symptoms.  He therefore thought that he might have VWF and that it was caused by his using vibratory tools.  It may be that, since he was using such tools by working for the second defendant, his condition had worsened.  
10.	In 2000 he heard some more from another of the second defendant's employees, who suggested to him that he apply to the Department of Social Security for benefit.  He decided to do so and was examined by a doctor for that purpose.  In his account as noted by the doctor on 30th November 2000, he said that he first noted "this May" that his hands were cold when he was on holiday.  He then described his symptoms which, as I understand it, were the symptoms of VWF, although not including vascular symptoms.  
11.	His application for benefit to the Department of Social Security was refused.  It appears that it was refused on the footing that he was not sufficiently suffering from VWF in order to be entitled to benefit.  He appealed, but his appeal failed in 2001.  It appears that the decision was communicated to him in May 2001.  
12.	The respondent went to solicitors, having seen an advertisement which they had put in a newspaper, and he was subsequently seen by Dr Anne Hicks in December 2001.  She diagnosed "Hand/Arm Vibration Syndrome Stage 3".  
13.	Mr Groom submits, with some force, that the account that the respondent gave to Dr Hicks was different from the account which he had given to the doctor in November 2000.  The Judge said this in paragraphs 12 and 13 of his judgment:
"12.  I find it extremely hard to believe that he did not associate the symptoms which he had - and which he describes as 'serious' in 1992 - with his workplace and with the fact that he had been using for a very substantial length of time the vibratory tools which are described.  It matters little, perhaps, because certainly by the middle of the 1990s he clearly associated his condition with the condition known as Vibration White Finger.

13.  It is very often the case, in my experience, that persons do know that they have a particular work-related illness and do not make any kind of application either to the Department of Social Security or to a solicitor to take action in the civil courts until in some way it is made particularly easy for them or they are persuaded to do so by a work colleague, very often a work colleague who has made an application himself or who has been successful in making such an application.  In other words, I do not accept that the mere fact that a person does not take any action until a particular date is itself conclusive by any means that it was not until that particular date or thereabouts that he first realised that he had an actionable case, and I conclude that this claimant did have a actionable - knew that he had an actionable case by 1992.  In any event, it would have to be that he had it by the middle of the 1990s and so far as limitation is concerned he was out of time."  

It thus appears that the Judge held that the respondent had the relevant knowledge by 1992 or, in any event, by 1995.  
14.	In a respondent's notice, Mr Lewis submits on behalf of the respondent that the Judge should not have held that the respondent had the relevant knowledge as early as 1992, but does not now contend, as he did before the Judge, that he had it later than 1995.  
15.	In considering the exercise of his discretion under section 33, the Judge set out the relevant parts of the section.  He then considered each of the sub-paragraphs in section 33(3), to which I will return in a moment.  Having done so, he correctly stated that it was a balancing exercise and ultimately, albeit with reluctance, exercised his discretion in favour of the respondent, disapplied the provisions of section 11 of the Act and allowed the action to proceed. 
The Approach of the Court of Appeal:  
16.	This court will only interfere with the exercise of a judge's discretion where he has erred in principle or made a decision which is plainly wrong.  See, eg, G v G (Minors Custody Appeal) [1985] 1 WLR 647 per Lord Fraser at 652, Tanfern Ltd v Cameron MacDonald [2000] 1 WLR 1311 per Brooke LJ at para 32, and AEI Rediffusion Music Limited v Phonographic Performance Limited [1999] 1 WLR 1507.  For example, in G v G, Lord Fraser suggested that an appellate court should only interfere if the judge "has exceeded the generous ambit within which a reasonable disagreement is possible."
The Appeal:  
17.	Mr Groom submits on behalf of the Council that the Judge erred in principle in a number of respects, or was plainly wrong.  He submits that the Judge failed to heed, alternatively to apply, the burden of proof, which he correctly says in a heavy one: see KR v Bryn Alyn Community (Holdings) Ltd (In liquidation) [2003] QB 144, 2003 EWCA Civ 85 and 783 at para 74(ii).  I am not, however, persuaded that the Judge made any such error.  He correctly directed himself by reference to the section and then held that it was equitable to disapply section 11.  He could only apply that section by holding that the respondent had shown that it was equitable to be allowed to proceed.  
18.	The approach of the judge can best be examined by reference to the terms of section 33(3).  The Judge first stressed, as subsection (3) itself does, that the court must have regard to all the circumstances of the case.  
19.	As to section 33(3)(a), Mr Groom submits that the Judge failed properly to take account of the reasons for the delay on the part of the respondent.  However, the Judge expressly directed himself by reference to paragraph (a) and said that the reasons for delay were essentially a disinclination on the part of the respondent to take action until he was sufficiently motivated to do so.  In the context of paragraph 13 of his judgment, which I quoted earlier, that was, to my mind, intended to be critical of the respondent and was a thus a factor militating against him.  
20.	As to paragraph (b), the Judge plainly regarded this as an important factor.  Although the delay here is very different from the short period in Hartley v Birmingham City District Council [1992] 1 WLR 968, the court there gave valuable guidance, which included the following passage in the judgment of Parker LJ at page 979g to 980c as follows: 
"In view of their Lordships' indication that this court might provide some guidelines and also because the exercise of the discretion under section 33 of the Act of 1980 is of considerable importance, I venture, however, upon some general observations with regard to the matter.  It appears to me to be apparent that in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite.  The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied.  Likewise the weaker the case of the plaintiff the less is he prejudiced by the operation of the provision and the less is the defendant prejudiced if it is disapplied."

21.	I interpose to note that the application of the principle in that passage has been subsequently said to depend upon the circumstances of the particular case.  However, Parker LJ continued:
"This might lead one to suppose that the prejudice referred to in section 33(1)(b) was not the deprivation of the fortuitous defence as such but prejudice to the defence on the merits caused by the delay.  Both Lord Denning MR and Ormrod LJ in Firman v Ellis appear to have assumed that this was so.  That this was the Parliamentary intent appears to be indicated by the fact that, as Lord Diplock pointed out in Thompson v Brown [1981] 1 WLR 744, 751, only section 33(3)(a) and (b) appear to go to prejudice and both are dealing with the merits.  The decisions of their Lordships preclude such a construction of the section.  In my view, however, as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance.  What is of paramount importance is the effect of delay on the defendants' ability to defend.  The specific example given in section 33(3)(b) so indicates."

22.	What then was the effect of the delay on the Council's ability to defend?  The Judge plainly thought that this was a critical factor in the instant case.  In my opinion, he was right to do so.  
23.	Mr Groom submits that the Judge should not have placed weight on the failure of the Council to adduce evidence of prejudice because the burden of proof was on the respondent.  I do not agree.  While it is true that the ultimate burden is on a claimant to show that it would be equitable 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.  It is for that reason that, as the Judge observed in paragraph 17 of his judgment, there is very often an affidavit from a solicitor on behalf of the defendant, explaining how the defendant would be prejudiced.  
24.	The judge noted that the Council conceded that causation could be proved and that, so far as causation was concerned, its position was no different from the position it would have been in had the action been brought in time.  Indeed, it further conceded that if the Council had been the only defendant, the argument that it would be prejudiced was very slim.  Mr Groom's argument was that the Council was faced with particular difficulties on the issue of apportionment between the defendants.  He identified two aspects of prejudice in his skeleton argument, and, indeed, in his oral submissions this morning, as follows:   
"1. the lost opportunity to use the evidence of    Mr Tom Slater (the Respondent's supervisor), who died shortly before the date of the Respondent's statement.  There was an issue between the parties about the duration of the vibration exposure.  It is submitted that where, as here, the evidence of the Respondent was held to be unreliable, the loss of this opportunity to rely on the evidence of an immediate supervisor was significant, especially since it resulted in the delay of the expiry of the limitation period.  

2. difficulties in relation to the issue of apportionment between the defendants."

25.	It is in relation to this latter point that Mr Groom submits that the Council was prejudiced by the respondent's failure to make a claim in the early or mid-1990s because the Council could then have had the respondent examined in order to see whether he was suffering from VWF caused by the Council, as opposed to by his second employers.  
26.	As to the first point, I am bound to say that in the absence of evidence from the Council, it is very unclear what the nature of the prejudice to the Council is said to be.  There is no suggestion that there has been any change of practice at the Council.  On the contrary, there are statements adduced on behalf of the respondent from employees of the Council, including a manager still employed by it to that effect.  There is, in any event, no reason to think that the Council cannot itself adduce evidence of working conditions and practices at the time, or indeed take statements from the witnesses who have given statements to the respondent.  
27.	The fact that Mr Slater died came to light, so far as this application was concerned, because the respondent said in paragraph 16 of his statement that throughout his period of employment he was based at two particular depots and that his main boss was Mr Tom Slater.  He added that, unfortunately, he understood that Mr Slater had recently died.  He also said, however, that he also worked with a Mr David Burns, Mr Barry Keighley, Mr Laurence Cooper and Mr Stephen Bloomer and that indeed his senior boss was a Mr Graham Broadhurst.  The respondent's solicitors have been able to take statements from those witnesses.  Indeed, as my Lord, Ward LJ, observed during the course of argument, there is no evidence of when Mr Slater died.  It may well be that if he had died only shortly before the date of the statement, which was in April 2004, he had been available for a statement to be taken after the claim was known to the Council.  However that may be, it does not appear to me that this evidence shows that the Council would be faced with any significant prejudice by the absence of Mr Slater.  The evidence is said to be relevant to the duration of the vibration exposure.  Given the availability of the other witnesses from the Council, I see no reason why the court should not be able fairly to determine that question as between the parties.  
28.	As to the apportionment, although it is true that the Council was not able to have the respondent examined during the 1990s, the court will be faced with an issue of apportionment in any event.  The issue is raised in paragraph 4 of the defence of the second defendant, which pleads as follows: 
"Insofar as they relate to the First Defendants, the Second Defendants adopt the Claimant's allegations of negligence and/or breach of statutory duty against those Defendants.  In the event that the Claimant is able to establish that he suffered loss, damage and injury in consequence of the Second Defendants' negligence and/or breach of statutory duty the Second Defendants aver that they are liable to the Claimant only to the extent that their employment contributed to the condition for which the Claimant suffered and deny that they are liable for damage arising from exposure whilst in the course of the Claimant's employment with the First Defendants."

29.	The court will thus have to grapple with these issues in any event.  There is now plain evidence from Dr Hicks that the Respondent was suffering from VWF when she saw him in December 2001.  It appears that it will be the second defendant's case that he was already suffering from VWF before his employment with the second defendant began because he suffered from it while working for the Council.  It is to my mind desirable that these issues should be fairly resolved as between all three parties and, in the absence of convincing evidence of relevant prejudice from the Council, it appears to me that the Judge was entitled to hold that no significant prejudice to the Council was shown.  
30.	There appears to me to be substance in Mr Lewis's point that the tools used when the respondent was employed by both the defendants were notoriously associated with VWF and that justice and equity require the action to proceed against both defendants.  In all the circumstances, I detect no error on the part of the Judge in connection with paragraph (b).  
31.	As to paragraph (c) and (d), the Judge correctly held that they were not relevant.  As to paragraph (e), this consideration harks back to the reasons for the delay in paragraph (a).  The Judge again held that the respondent acted, as he put it, most impromptly.  
32.	As to paragraph (f), the Judge commented that the respondent took no or very few steps to investigate his position and that had he done so, he might have furnished himself with the relevant evidence at a much earlier stage.  That was therefore a factor to put into the balance against the respondent.  The Judge said as much in paragraph 26.  
33.	The Judge then conducted the balancing exercise.  How the balance was to be struck was essentially a matter for him.  He recognised the potential disadvantages to the Council in not having the evidence of Mr Slater and he took account of the problems relating to apportionment but decided that for all his reservations it would be equitable to allow the action to proceed.  
34.	The question for us to decide is not whether we would have reached same conclusion as the Judge, but whether, in the words of the Lord Fraser, the Judge exceeded the generous ambit within which reasonable disagreement was possible.  In my judgment, he did not.  It follows that I would dismiss the appeal.
35.	LORD JUSTICE WALL:  I agree, and do not wish to add anything.
36.	LORD JUSTICE WARD:  I also agree and I am afraid the appeal is dismissed. Mr Groom.
37.	MR GROOM:  There is an application which I will not be able to resist.  I think my learned friend is going to suggest that there is a detailed assessment, having regard to the time.
38.	MR LEWIS:  My Lord, it is a matter for the court.
39.	LORD JUSTICE WARD:  We have not got the schedule of your costs, at least I have not.
40.	MR LEWIS:  I am told it was sent.  I do have spare copies, if that assists.  My Lord, I simply ask for the costs of the appeal.  There is a schedule. 
41.	LORD JUSTICE WARD:  Has Mr Groom seen it? 
42.	MR LEWIS:  He has seen it.  It is not agreed.
43.	LORD JUSTICE WARD:  What do you want us to do?  We will look at it if you want us to.
44.	MR LEWIS:  I am perfectly content that there be a detailed assessment.
45.	LORD JUSTICE WARD:  What is the total of this? 
46.	MR LEWIS:  The total is on the front page.  The first section is a summary and it is £6,971.22.
47.	LORD JUSTICE WARD:  That includes your uplift? 
48.	MR LEWIS:  It includes the uplift, yes.
49.	LORD JUSTICE WARD:  I never understand those, but anyway --  Mr Groom, what is wrong with this? 
50.	MR GROOM:  My Lord, it is a question of proportion in relation to the costs that have been incurred by the defendant in bringing the appeal.  The profit costs -- I think my learned friend has a copy of the schedule -- were £840.  Since they have had to pursue the appeal, it is difficult to see how such a much larger amount can be justified.  Yes, 840.
51.	LORD JUSTICE WARD:  840, as against your figure of 1,900.
52.	MR GROOM:  I do apologise.  I have misled myself by the wrong sub-total.  
53.	LORD JUSTICE WALL:  840 is travelling, is it not?
54.	MR GROOM:  Yes, it is. 
55.	LORD JUSTICE WARD:  It says here 600 for travelling.
56.	MR GROOM:  Save for the item for travel, they are comparable.
57.	LORD JUSTICE WARD:  They are claiming less for travel.
58.	MR GROOM:  Yes.  My Lord, it is the basic cost of just under £2,000 for preparing for the appeal and to respond to the appeal when there has not been very much to do.
59.	LORD JUSTICE WARD:  What were your costs?
60.	MR GROOM:  I can hand up mine.  
61.	LORD JUSTICE WALL:  554.
62.	MR GROOM:  That includes, obviously, court fees that would apply.
63.	LORD JUSTICE WARD:  Their costs are bumped up because they rallied in nearly £800 for the uplift.  If they are entitled to that --
64.	MR GROOM:  I have to confess, I had not thought it was applicable at this stage because the case is not finally disposed of and the ultimate question of success is not determined.  I have not seen the CFA.  I do not know whether or not the result of today's hearing can trigger payment, if successful.
65.	LORD JUSTICE WARD:  I do not know.
66.	MR GROOM:  My Lord, I wonder if in the circumstances it might be better for there to be a detailed assessment, unless the matter can be agreed between the parties.
67.	LORD JUSTICE CLARKE:  That is the only point, the success fee point, is it not?  There would not be any point in a detailed assessment on any of the rest of it, would there?  You will soon have spent the money going along to see the costs judge. 
68.	MR GROOM:  Yes, I agree.  
69.	LORD JUSTICE CLARKE:  I am afraid I am in the same position as my Lord, namely, I do not have the faintest idea how these success fees work.
70.	LORD JUSTICE WARD:  Can you throw light on it, Mr Lewis? 
71.	MR LEWIS:  My Lord, I cannot.  It is right that if we have been unsuccessful there would not be a success fee.
72.	LORD JUSTICE WARD:  I do not see how you can add it on after we have made an assessment of your costs so that if you were successful at the end and we have assessed your costs, I do not see how you can add it on at that stage.  I would have thought that if you are entitled to it at all, you are entitled to it whenever you get a favourable order for costs.  Looking at that schedule, there does not seem an awful lot wrong with it.  The answer may be to say that you can have your detailed assessment unless agreed.  As you are on your train, over your gin and tonics, you can sort it out! 
73.	MR LEWIS:  Yes, my Lord.  The alternative, which I am quite happy to agree, is that the court simply assess the basic costs and the question of the success fee is put over to the conclusion of the case.  So that we have our costs order now and we can recover our basic costs and the success fee is left until the end of the trial.
74.	LORD JUSTICE WARD:  I am not sure how we can do that.
75.	MR GROOM:  I would agree to that.  It certainly seems the most sensible way of proceeding.
76.	LORD JUSTICE CLARKE:  As long as if on analysis they would be entitled to the success fee it is not open to you to say, "Well, you did not get it on the day."
77.	MR GROOM:  No, I agree.
78.	LORD JUSTICE WARD:  I think what we will do, then, is we will assess your costs and we do not really see any reason to diminish the costs on the schedule, so you can have your costs in accordance with the schedule, together with any success fee to which you may establish you are entitled.  Could you add that up so that something can go in the order.
79.	MR LEWIS:  Yes, my Lord.  We will agree a figure and hand it forward.
80.	LORD JUSTICE WARD:  If, having looked into the matter, you agree the success fee is payable, perhaps if you contacted the Associate, she can leave over the drawing of the order until tomorrow and maybe she can put in the right figure.
81.	MR LEWIS:  I am grateful for that assistance.