Frequently limitation will be a key issue in noise-induced hearing loss (“NIHL”) cases. The following issues arise:
- when does the 3 year time limit run from, in other words:
- when did the cause of action accrue; or
- if later, when did the Claimant have actual or constructive knowledge; and
- if the claim is being brought out of time, would it be equitable to extend time under s33 Limitation Act 1980?
The Court of Appeal has considered limitation in this context twice in 2014 and on both occasions has taken a robust approach.
Malone v Relyon – accrual of cause of action
In Malone v Relyon Heating Engineering Limited  EWCA Civ 904, Mr Malone had been employed by Relyon between 1977 and 2004 (save for five years). Relyon was still trading in 2004, but it went into administration in February 2006. Relyon’s insurers were notified of the claim in 2009.
At first instance, Mr Malone accepted that he had constructive knowledge by the end of January 2001, but argued that the action accrued at the end of employment in 2004. He had issued his claim in 2011 and requested that the primary time limit be dis-applied under s33 in respect of his entire employment with Relyon.
The trial judge seemed to accept that the action accrued in 2004 and held that the primary limitation period expired in 2007. On the basis that there would not have been a substantial change in prejudice to the Defendant between 2007 and 2009, when they were notified of the claim, she dis-applied the primary time limit.
The Court of Appeal held that the judge erred in her approach in only identifying one limitation period; given that NIHL is a divisible form of injury time started in 2001 for the injury prior to that date and on a rolling basis for the post-2001 period. Further, that it is appropriate to consider delay from date of knowledge rather than focussing solely on the delay from the end of the limitation period when deciding whether to exercise discretion under s33. The CA held that it would not be equitable to extend time on the pre-2001 injury, particularly given that the Defendant had been wound up between the date of knowledge and bringing the claim. Further, given that the overall award was £3,374 and that the majority of harm was likely to have been inflicted prior to 2001, the Court of Appeal held it would not be proportionate to exercise its discretion in relation to the post-2001 injury. Fulford LJ held that “[c]ourts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability.”
Platt v BRB – constructive knowledge
The recent case of Platt v BRB (Residuary) Limited  EWCA Civ 1401 dealt with constructive knowledge. Mr Platt’s claim related to employment between 1953 and 1988. He issued his claim in October 2011. Mr Platt had started complaining to his GP of hearing loss in 1982, and had visited medical professionals on 12 occasions. The Trial Judge found that Mr Platt did not have actual knowledge that there was a real possibility that the hearing loss was noise induced until 2010. On appeal the key question was whether Mr Platt had constructive knowledge in 1997 when he was referred to an Ear, Nose and Throat Registrar who asked Mr Platt whether he had worked in a noisy environment. Mr Platt had explained he had but did not ask if this had caused the hearing loss and was not told as such by the Registrar.
The Court of Appeal held that although Mr Platt had taken reasonable steps to obtain medical advice, it was reasonable to expect Mr Platt to ask the Registrar whether the history of noise that they had discussed had caused or contributed to his symptoms. Vos LJ indicated that it was a “demanding test” and that “[t]he purpose of section 14(3) of the 1980 Act is not to protect those who do not act reasonably in their own interests to obtain and act upon expert advice”. Further, Vos LJ stated that in his judgment the outcome would have been the same even if the Registrar had not asked Mr Platt whether he had worked in a noisy environment.
There are a number of practice points that can be drawn from these judgments:
- It will not be sufficient for a Claimant to have sought expert advice in relation to his or her hearing loss; regard must also be had to whether he or she actively made reasonable enquiries of doctors as to the source of hearing loss.
- The cause of action does not necessarily accrue at the end of employment; if the Claimant has actual or constructive knowledge prior to the end of employment, that date will be key.
- The date of actual or constructive knowledge will also be key in relation to an application to dis-apply the primary limit under s33.
- When considering the merits of an NIHL claim it is advisable to make probing enquiries of potential Claimants in relation to the steps they took to determine the cause of their hearing loss. It is likely, given the approach of the Court of Appeal, that Defendants will pursue limitation points rigorously and that the courts, in most cases, will expect Claimants to have taken steps to find the source of their hearing loss.