Description
The Claimant brought a personal injury claim for damage to his hearing, sustained it was alleged, during the course of his employment in a noisy working environment between 1953 and 1988 with his former employer.
He had sought medical attention in respect of problems with his hearing on numerous occasions between 1982 and 2011, though it was not until 2011 that he was expressly told that his hearing loss was noise induced. Most significantly, the Claimant had complained to his GP about tinnitus and hearing loss in his right ear in 1997, and was referred to a specialist ENT Registrar. Though he was asked by his doctor whether he had worked in a noisy environment, to which he stated that he had, the Claimant did not ask on that occasion whether his problems were noise induced and the doctor did not volunteer that information.
The question of whether the Claimant had brought his claim within three years of the date of knowledge of his injury, the relevant limitation period under section 11(4) of the Limitation Act 1980, arose. The central issue was whether the Claimant was affected in or around 1997 by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to the negligence of his former employer such that his claim was statute-barred under the 1980 Act.
The case was heard by HH Judge Halbert at first instance who gave judgment on 21 November 2013. He held that the Claimant did not have actual knowledge that there was a real possibility that his hearing loss was noise induced until he read a newspaper article in 2010, less than 3 years before he issued proceedings. He concluded that the Claimant was not affected by constructive knowledge of the cause of his deafness because "to afflict a man who has consulted the medical profession on 12 occasions with constructive knowledge because he did not specifically question their own judgment of what they were telling him is too harsh a test". In short, the Judge held that in all the circumstances of the case, it was not reasonable to have expected the Claimant specifically to ask his ENT doctor about the cause of his tinnitus and deafness in 1997.
The defendant appealed the decision at first instance in relation to the Judge's determination "that it was not reasonable to expect a reasonable person in [the Claimant's] position to ask [his ENT doctor] whether the history of noise exposure which they had discussed......caused or contributed to the symptoms with which the Claimant presented". It was not disputed that had he done so, he would have been likely to have been informed that his tinnitus and hearing loss were noise related.
The majority judgment of the Court was given by Vos LJ with whom Sharp and Jackson LJJ agreed. Vos LJ reviewed the main authorities on this point of law: Adams v Bracknell Forest Borough Council [2005] 1 AC 76, London Strategic Health Authority v Whiston [2010] EWCA Civ 195 and Johnson v Ministry of Defence [2012] EWCA Civ 1505.
He held (at paragraph 31) that "applying the appropriate test in section 14(3) with the guidance of Dyson LJ in Whitson, it was reasonable to expect [the Claimant] to ask [his ENT doctor] what had caused his hearing loss in all the circumstances of the case". By consequence, the appeal was allowed and judgment was given for the Defendant on limitation on the basis the Claimant's claim was time-barred under the Limitation Act 1980.
