13th March 2014 IT MAY/MAY NOT BE TOO LATE (PLEASE DELETE AS APPLICABLE) EXPLAINING THE STATUTE OF LIMITATION IN DISEASE CLAIMS

BACKGROUND:

The Limitation Act 1980 originates from statute dating back to 1623 and has developed over time to include imposing limits on claims for Personal Injury which include various Industrial Diseases.
Section 11 of the aforementioned Act allows a time limit of 3 years however in disease claims such as Noise Induced Hearing Loss this can be somewhat of a grey area.
2 recent cases demonstrate how the statutory time limits can cause what appears on the face of things to be a valid and genuine claim to fail on the basis of being out of time and therefore disallowed by Statutory provision (or "statute barred")
It is therefore imperative that an individual who considers that they may have an industrial injury (such as suspected Hand Arm Vibrational Syndrome, suspected Noise Induced Hearing Loss and suspected Asbestosis) contact legal representation at the earliest opportunity as well as their medical practitioner.

AB V MINISTRY OF DEFENCE [2012] UKSC 9 [2013] 1 AC 78, SUPREME COURT 14.3.12
THE NUCLEAR TEST CASES:

A group action made claims for breach of duty by the Ministry of Defence in exposing army personnel to radiation in the period 1952 to 1958. The majority of the claims were commenced in 2004. For many years many of these service men were of the belief that their exposure to radiation had caused them significant illnesses.
A study in 2007 showed an objective basis for that strongly held belief. Additional ex-service men joined the group action by means of fresh claim forms which were issued in the years of 2007 and 2008.
Ten test cases were directed to be tried on the preliminary issue as to whether the claims were statute barred under sections 11 and 14 of the Limitation Act 1980.

SECTION 11 OF THE LIMITATION ACT 1980 PROVIDES:


Section 11 Special time limit for actions in respect of personal injuries ...(4) Except where subsection (5) below applies, the period applicable is three years from-
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.

WHAT THIS ESSENTIALLY MEANS IS THAT A PERSON IS ENTITLED TO 3 YEARS FROM THE DATE OF KNOWING THAT AN INJURY HAS OCCURRED DUE TO NEGLIGENCE. SECTION 14 DEFINITION OF DATE OF KNOWLEDGE FOR PURPOSES OF SECTIONS 11 AND 12:

(1) .... In sections 11 ... of this Act references to a person's date of knowledge are references to the date on which he first 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; and
(c) the identity of the Defendant; and
(d) if it is alleged that the act or omission was that of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

IN EXPLANATION OF SECTION 14, KNOWLEDGE WOULD ARISE WHEN A PERSON REALISES THAT THEIR INJURY IN QUESTION HAS HAD A SIGNIFICANT IMPACT UPON THEIR LIVES AND HAVE ASSOCIATED IT WITH THE NEGLIGENCE.

The Supreme Court held that a Claimant was likely to have acquired knowledge of the facts specified in section 14(1) of the Limitation Act 1980 when he first came reasonably to believe them.

Knowledge was not considered to be a certainty and beyond refute, however a "sneaking suspicion" was not considered to be knowledge. In order to amount to knowledge, a belief had to be held with enough faith upon which to issue Court Proceedings, warranting searches by legal representation which may have given rise to the existence of evidence.

The date by which the Claimant had contacted legal representation was considered to by well in advance of the date the Claimant had acquired knowledge by virtue of section 14(1) at a time after he had issued his claim and had long since expired as knowledge was associated with the onset of significant injury.

JOHNSON V MOD & HOBOURN EATON [2012] EWCA CIV 1505
"THE REASONABLE MAN":

Mr. Johnson was exposed to excessive noise in various employments up to 1979 and was told by his employer to wear hearing protection on occasion. He was aware that loud noise could damage hearing but did not associate his hearing loss to noise in 2001 when he found himself suffering from hearing loss symptoms.

Mr. Johnson thought his losses were due to growing old and a buildup of was in his ears. In 2006 he went to see his GP and incidentally asked if there was any wax in his ears. The GP advised Mr. Johnson that his ears were clear and that his hearing loss was probably just due to the fact that he was 66.

A year later in 2007 he decided to issue Court Proceedings against his former employer and the matter as to whether he had knowledge in accordance with section 14 of the Limitation Act arose.

The Claimant persisted with the fact that he didn't have enough information to work out that he had noise induced hearing loss and the fact that he saw his GP in 2006 was raised.

At first instance the trial judge had found actual knowledge of attribution but that was not upheld on appeal.

The Court of Appeal, with Lady Justice Smith giving the leading judgment, held that whilst the case was "close to the line", the Claimant had by 2001 sufficient knowledge of attributability for the limitation period to start.

"By 2001, at the age of 61, the appellant had hearing loss which was quite serious, although not such as to destroy his enjoyment of life. He was having difficulty in hearing on social occasions," Smith LJ said.

"This condition had developed gradually over a period of time and I do not think he had suddenly become aware of it."

"The realisation that he had a problem must, I think, have dawned on him gradually. He did not associate his deafness with his previous working conditions. He had not been exposed to noise for over 20 years."

Smith LJ concluded:

"A reasonable man in the 21st century would be curious about the onset of deafness at the relatively early age of 61 and would wish to find out what was causing it"

"Shipbuilding was a notoriously noisy business in the 1960s and 1970s due to the use of percussive tools and it would, in my view, be most surprising if the GP had not come across middle-aged and elderly patients who were deaf as a result of their employment in that dockyard."

"I realise that there was no evidence to that effect in this case but I consider that I ought to take judicial notice of that likelihood, based upon my personal experience of noise deafness cases over a period of nearly 40 years."

The correct approach was not to consider whether what the Claimant had done was "not unreasonable" but what the reasonable man in the Claimant's position would have done. In considering this matter in the above case the Smith LJ referred to the cade of Bracknell [2005]

THE "REASONABLE" APPROACH

In Bracknell Forest Council v Adams [2005] PIQR p11 it was held that generally, the "reasonable man" would be curious enough about an injury that is considered significant to warrant thorough investigation.

Had Mr. Johnson enquired further about his symptoms, not put it down to just wax and highlighted the fact that he started to get a reduction in hearing, this would have given rise to a discussion about his employment history often asked when enquiring about noise induced hearing loss; especially taking into consideration that he lived in the vicinity Chatham dockyards it is likely that a diagnosis of Noise Induced Hearing Loss would have been made sooner.

CONCLUSION:

What these two cases demonstrate is the evolving nature of the Law of Limitation both in complexity and interpretation, but more importantly it highlights the need for swift action in personal injury and disease claims.

Whilst there is provision for discretion under section 33 of the Limitation Act 1980 to allow cases the criteria is somewhat hard to fulfil, and what the above cases demonstrate is that meritous claims can be struck out if there are no reasonable grounds for delays in issuing the claim.

Proving negligence and having a significant injury alone is not sufficient enough to validate a claim against either: a former employer, an individual or a public body. One must demonstrate that he or she has brought the claim to the Courts within the statutory time limits. It is therefore imperative that a person with a suspected industrial disease contact legal representation at the earliest opportunity in order to assess the timeliness of their claim so as not to prejudice the claim any further.

SOURCES

Statute:
The Limitation Act 1980 (s.11, 12, 14 and 33)

Cases:
AB v Ministry of Defence [2012] UKSC 9 [2013] 1 AC 78, Supreme Court 14.3.12
Bracknell Forest Council v Adams [2005] PIQR p11
Johnson v MOD & Hobourn Eaton [2012] EWCA Civ 1505

Commentaries and Papers:
Law Commission Paper on Limitation - Paper 270 available at: http://lawcommission.justice.gov.uk/docs/

lc270_Limitation_of_Actions.pdf