Given the difficulties upon primary issues of breach of duty and exposure, limitation has been a valuable tool for Defendants in disease cases. In recent years judicial opinion has often appeared to swing in favour of Defendants particularly in cases of deafness and HAVS. However, following the cases of
Furniss v Firth Brown Tools Limited [2008] and
Field v British Coal Corporation [2008] there is concern that perhaps the Court of Appeal is sending a message that Defendants should be reigned in following the earlier elation of
McCoubrey v MOD [2007].
The Key Legal Test
Under Section 11 of the Limitation Act the action must be brought within three years of the date of which the Claimant’s course of action accrued or of the Claimant’s date of knowledge if later. In disease cases the Claimant usually seeks to rely upon the date of his medico-legal report.
Section 14(1) defines “date of knowledge” as the date on which the Claimant first had knowledge that the injury in question was significant and that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence.
Section 14(2) states that an injury is significant if the person would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages.
Of course, the Defendant will endeavour to show that the Claimant has been fixed with “constructive knowledge” that he had the significant injury much earlier than his actual knowledge when he received his medico-legal report. The test of constructive knowledge is considered against the facts ascertainable by the Claimant with the help of medical or other appropriate expert advice which it is reasonable for him to seek; see Section 14(3).
The burden of proof to establish an earlier date of knowledge for “significant injury” rests with the Defendant. In Adams v Bracknell Forest Borough Council [2004] it was held that the test of constructive knowledge was wholly objective and should not take into account the Claimant’s own subjective perception. It was followed in McCoubrey v Ministry of Defence [2007] where the question of whether the injury was significant was to be decided by reference to its seriousness and not to its effect or any perceived effect on the Claimant’s career or private life. In A v Hoare [2008] the House of Lords clarified the interpretation of the relationship between Sections 14(2) and Section 14(3). Firstly - what did Claimant know about the injury he had suffered (subjectively), add any knowledge about the injury which may be imputed to him under Section 14(3) and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify instituting proceedings (the objective test).
Favourable cases for Defendants
In the court of appeal decision of Norton v Corus UK Limited [2006] the Claimant had suffered symptoms of HAVS from 1992 but did not take any action until a relative made a successful claim against another employer. It was not until 2003 that he took action. It was held that the Claimant had constructive knowledge in 1997 and probably even 1992. Of significance, was the fact that his symptoms were no more significant in 2003 than when first apparent in 1992. The disease was well known within the industry in the 1990s and had the Claimant sought earlier medical advice the GP would not have dismissed the symptoms.
In the case of Kew v Bettamix Limited and Others [2006} it was during the 1990s that the Claimant experienced some numbness in this fingers which he attributed to age. It was found that he had constructive knowledge from March 2000 when following a routine occupational health check his doctor informed him that he had symptoms which might be attributable to exposure to vibration at work. Although he was not expressly told of the causative link the doctor’s conclusions demonstrated that there was a real possibility his working conditions had caused the symptoms and for a reasonable man required investigation.
In 2007 Langleys enjoyed success defending clients in two deafness claims when several later employers in time had settled their respective contributions. Both claims were stale in the sense that exposure had ceased many years before proceedings had been commenced. The cases illustrate the importance of a hearing upon the preliminary issue of limitation because both Claimants made valuable concessions under cross examination. In Green v Bridon Ropes v Others [2007] the Claimant conceded his awareness of impaired hearing at an early stage when he purchased earphones and conceded that he was aware of the causal connection that hearing loss could be caused by the sort of work he was doing. Further, he acknowledged hearing tests took place and was provided with hearing protection. In Kaur v AcKroyd v Successors v Others [2007] the Claimant conceded that she had been aware of symptoms of hearing loss before her employment with AcKroyd and she knew the reason why hearing protection was provided and yet still waited 9 years after leaving AcKroyd before progressing her action.
Recent decisions - has the tide turned?
In the recent case of Furniss v Firth Brown Tools Limited [2008] the Claimant’s noise exposure had ceased in 2005. He conceded knowledge of hearing loss and tinnitus on dates between 2000 and 2003 but proclaimed that this had been due to ear wax and that tinnitus was hereditary. Unlike deafness, which is more generally recognised as being potentially caused by loud noise tinnitus may be less clearly attributed in the mind of a lay person. The Court of Appeal found that such problems upon the Claimant’s evidence, were considered by the Court to be only a minor inconvenience and it cannot be said that as soon as a man is aware of some minor inconvenience in respect of his hearing he is to be fixed with knowledge that he should go on to acquire expert evidence.
In Field v British Coal Corporation [2008] the Claimant claimed for noise induced hearing loss after working in a colliery. In 1985 he suffered from minor hearing loss and the build up of earwax and infections and consulted his GP. Audiograms were carried out in 1998 and 2000 but it was not until 2003 that he was diagnosed with mild noise induced hearing loss. At first instance the Court found that he had constructive knowledge in 1998 because although the examination had detected no abnormality with his ears he had been in the position to know that he had some hearing impairment which was not explicable by wax or infection and should have conducted enquiries.
On appeal it was found that he did not have constructive knowledge because he had received no advice in 1998 or 2000 to suggest that he had any problems other than recurrent earwax and infections. It was reasonable for him to believe that there was nothing much wrong with his hearing and he was fit to continue work.
In White v Eon, Omega Red Group Ltd v Sentinel Lightning Protection and Earthing in November 2008 the Court of Appeal again applied the reasoning in Adams –v- Bracknell Forest BC [2004]. The Claimant sought damages for vibration white finger and carpal tunnel syndrome following employment between 1962 and 1996 with the Defendant. He contended for a date of knowledge in 2003 when he saw an advertisement for a claims company. It was held that he had constructive knowledge at an earlier date when he left his employment because it had been reasonable at that point to expect him to have sought medical advice in respect of his combination of symptoms which would have led to a link between his condition and the use of vibrating tools. This was an objective test and the judge at first instance had been entitled to make this finding of fact upon the evidence before him and this was not the sort of finding that the Court of Appeal ought to interfere with.
The Field and Furniss cases are examples of decisions upon their own factual circumstances. Furniss makes matters a little more difficult for the Defendant. The Court seemed to go against the trend of the recent limitation cases and said that if the Claimant did not think that his hearing loss was significant and chose not to do anything about it then who was to criticise him when there was no clear advice that he had hearing loss that was noise induced. It seems that the objective test has been tainted by an element of subjectiveness.
Tactical considerations and practical guidance
- In historical deafness or HAVS claims, whenever exposure has ceased more than 10 years prior to the commencement of proceedings, a limitation Defence must be considered. Where for example there is a delay of more than two years since the expiry of the limitation period, and more than 10 years since the events which are the subject of the claim the Claimant will have more difficulty persuading a Court to apply discretion under Section 33.
- Exercise caution when contemplating any admissions upon exposure or breach of duty where limitation is being considered as such admissions may undermine submissions of prejudice and the prospects of a fair trial under Section 33.
- There is a tactical advantage in pursuing limitation as a preliminary issue. Claimants are often surprised by the amount of cross examination on exposure levels and will emphasise how excessively noisy the working environment used to be, and over emphasise the extent of their hearing loss not recognising that this will work against them by establishing an earlier date for knowledge of significant injury.
- Always obtain GP notes, hospital records and occupational health records. They may contain a contradictory historical account to that advanced by the Claimant or events which the Claimant may have forgotten about. Most Judges are receptive to Defendants arguments on limitation if well presented with the focus being upon several key points or “golden nuggets” as often revealed in these records.
If the records show that, for example, there has been no deterioration in the Claimant’s condition for the last 7 years then he will have difficulty in arguing that his condition is now “significant” when it was not significant 7 years ago when he left the Defendant’s employment.
Limitation in deafness and HAVS claims provides the Defendant with better prospects then respiratory claims as it will be harder for a Claimant to argue that he is not aware of the work process or equipment that he has been subjected to. The position is different with respiratory claims where specific medical advice is often required to start time running against the Claimant.
Chris Price, Partner
Langleys Solicitors