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S.33 Limitation Act: incorrect approach to discretion in noise induced hearing loss claim

Malone v Relyon Heating Engineering Ltd
Court of Appeal
2 July 2014

In the recent case of Malone v Relyon Heating Engineering Limited (2014), a noise induced hearing loss claim, the Court of Appeal dismissed the claimant’s claim and provided helpful guidance on the correct approach to the exercise of the court’s discretion under section 33 Limitation Act 1980 to disapply the limitation period.

Facts and first instance decision

The claimant worked for the defendant as a maintenance fitter over a 27 year period from 1977 to 2004.  In his role he was tasked with maintaining pipework in factories for which he used various power tools such as grinders, cutting equipment, compressors and hammer drills.  It was frequently the position that his employers had failed to provide him with any adequate hearing protection and following submissions from a Consultant Forensic Engineer it was accepted that there had been breach of duty by the defendant in relation to noise exposure.

The defendant company was still trading in 2004 but filed its final accounts in March 2005.  It then went into administration and was eventually dissolved in October 2010. The defendant’s EL insurers were notified of the claim by letter of claim dated 13 March 2009 with proceedings being issued on 21 January 2011. 

Following proceedings being issued the former liquidators of the company confirmed that all the company records had been destroyed. Although the records should have been kept for 12-15 months they had in fact been destroyed within 8 months of dissolution.  There was therefore no relevant documentation relating to the claim available.

At trial it was accepted that for the purposes of sections 11 and 14 Limitation Act 1980 the claimant had constructive knowledge in January 2001 when he had consulted with his GP and was issued with hearing aids by an ENT surgeon.  As the limitation period had expired when the claimant issued his claim in January 2011 he requested the court exercise its discretion to disapply the limitation period for the entire period of his employment.

The judge determined that the damage to the claimant’s hearing had continued up to 2004 and the claimant was entitled to bring the whole claim up to 2007 concluding that there was only one limitation period that had to be considered i.e. the entirety of the claimant’s employment.  

Discussing prejudice to the claim, the judge focused on 2009 when the insurers were notified of the claim, rather than 2011, because she determined their position would not have been materially different over that two year period.  The judge accepted that the defendant would have had a strong case with regards prejudice if the delay had been between 2004 and 2009 but she had determined that the period of delay was 2007 to 2009 and the difficulties in defending the claim were not materially worse in 2009 than in 2007.  The judge therefore determined that it would be equitable to disapply the primary limitation period in accordance with section 33 of the Act and allow the claimant’s claim.

The defendant appealed on the basis that the judge had not appropriately exercised her discretion to disapply the limitation period in accordance with section 33.

Court of Appeal Findings

Fulford LJ, Arden LJ and Jackson LJ allowing the defendant’s appeal held:

The judge had taken the wrong approach and the Court of Appeal was obliged to re-exercise the discretion provided by section 33.

The judge had erred in determining that the claimant’s cause of action had accrued in 2004. Constructive knowledge had been set in January 2001 and therefore the limitation clock ran from that time. The additional delay in bringing the claim in 2004, when the company was a still a going concern, to 2009 had made it substantially more difficult for the parties to adduce relevant evidence and it was the judgment of the court that the effects of delay as regards the pre-2001 injury led to very considerable forensic prejudice for the defendant. The Court of Appeal concluded that it would not be equitable to allow the action regarding the pre-2001 injury to proceed.

In considering the post-2001 exposure to noise, the Court of Appeal raised the further issue of proportionality stating that the likely amount of the award is an important factor to consider when exercising section 33 discretion, especially when the contesting of the claim would be both expensive and resource heavy. Given the award for the entire period of employment had been £3,375 the value of the period 2001 to 2004 would be exceedingly small since most of the injury had been prior to that time. 


The decision will be of significant value for defendants in defending claims and advancing limitation defences where the claimant’s delay in bringing the claim has resulted in the unavailability of witnesses and loss of evidence for the following reasons:

  • The Court of Appeal cited the House of Lords decision in Donovan v Gwentoys (1990),“A defendant is always likely to be prejudiced by dilatoriness of a [claimant] in pursuing their claim.” and emphasised that when assessing prejudice it was it was important to look at the delay in the round, even the pre-limitation delay. Further, it confirmed the position that the delay prior to the claimant’s date of knowledge can also be taken into account by the court.

  • The decision also demonstrates that the limitation clock will not simply start to run when exposure ceases, but will begin when the claimant has knowledge for the purposes of the Limitation Act even where exposure is continuing. In any event, the court is entitled to consider the whole lapse of time from exposure, not simply the period following the expiry of the limitation period. This position was confirmed in the recent Court of Appeal decision in Collins v Secretary for Business Innovation and Skills and Stena Line Irish Sea Ferries Ltd (2014).

  • When exercising discretion the court must have regard to proportionality and if a claim is of an exceedingly small value then precious resources should not be diverted to disapplying the Limitation Act to allow such claims to be brought. This will be of particular value to defendants when defending low level deafness cases


For further information, please contact Patrick McBrien, Director on 0161 603 5236 or at patrick.mcbrien@dwf.co.uk

By David McCracken

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.