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Constructive knowledge and limitation: revisited and restated

Howard Platt v BRB (Residuary) Limited
Court of Appeal
31/10/2014

The Court of Appeal has again examined constructive knowledge in the context of limitation in disease cases. The defendant was successful in this Noise Induced Hearing Loss claim as the Court of Appeal imputed the claimant with constructive knowledge considerably earlier than the three year period for bringing proceedings. In the context of burgeoning numbers of claims for NIHL, the Court of Appeal usefully re-examined key cases on this subject and the operation of the relevant sections of the Limitation Act 1980 which will be of particular significance for late claims being pursued well out of time. DWF partner Helen Elsworth acted for the Department for Transport who inherited the liabilities for BRB (Residuary) Ltd after it was abolished on 30 September 2013.

Facts and First Instance Decision

The claimant, Mr Platt, now aged 76, worked for what was then British Rail at its engineering works at Crewe for almost the whole period between 1953 and 1988. From 1982 the claimant began complaining to his GP about various ear and hearing related problems on a regular basis. Indeed there were no fewer than 12 separate consultations between 1982 and 2011. It was not until 2011 that the claimant stated he was specifically told that part of his hearing loss was noise induced and he claimed he had become aware of NIHL after reading an article on the subject in 2010. This was notwithstanding that in 1997, after complaining about tinnitus, the claimant was examined in hospital by an Ear Nose and Throat Registrar, who specifically asked whether the claimant had worked in a noisy environment. The claimant confirmed that he had and although the Registrar mentioned this in his follow up letter to the GP there was no further discussion by either doctor or patient about the causes of the hearing problems and tinnitus.

At first instance His Honour Judge Halbert held that the claimant only had “actual” knowledge of the possibility that his hearing loss was noise induced when he read the newspaper article in 2010, less than three years before he issued proceedings. However, central to the case was the operation of sections 11(4) and 14(3) of the Limitation Act 1980 and whether in 1997 the claimant had “constructive” knowledge that his hearing loss was attributable to an act or omission of his employers.  In broad terms this meant that even if he did not actually know at that time that his injury was attributable to his employment, he would be fixed with that knowledge if he could reasonably have been expected to acquire it from facts he could reasonably have ascertained either on his own, or with the help of medical or other expert advice.

If he was deemed to have constructive knowledge, then the personal injury claim would be statute barred (subject to the judge exercising his section 33 discretion to allow the matter to proceed). If no constructive knowledge was established, then the claimant could proceed with his case even though the claim related to events which occurred decades ago.

The judge found for the claimant on the issue of knowledge, rejecting the defendant’s argument that the claimant had ample opportunity to make reasonable enquiry as to the cause of his hearing problems. The judge felt that he should apply an objective test and that although a reasonable man of the claimant’s age would be curious about the cause of his deafness it was too harsh a test

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…”

 He added that if the claimant did have constructive knowledge, he would not have exercised his section 33 discretion as the defendant had suffered prejudice by the delay.

HHJ Halbert granted the defendant permission to appeal against his finding on knowledge because he perceived a lack of clear authority as to the extent a claimant should question doctors about the cause of the condition being complained of. 

Court of Appeal Findings

Lord Justice Vos, Lord Justice Jackson and Lady Justice Sharp allowed the appeal and gave judgment in favour of the defendant on the limitation issue, there being no challenge on the issue of section 33 discretion.

Giving the lead judgment Vos LJ reviewed the key authorities, drawing guidance from the House of Lords decision in  Adams v Bracknell Forest Borough Council (2005), and Court of Appeal decisions in London Strategic Health Authority v Whiston (2010), Johnson v Ministry of Defence (2012) (another NIHL case) and more recently Collins v The Secretary of State for Business Innovation and Skills (2014).

Dyson LJ’s test in Whiston was to be taken as the exposition of the law binding on the court. Dyson LJ had rejected the submission that in all cases where a person was aware that he had suffered a significant injury, section 14(3) requires one to assume that he will be sufficiently curious about the causes of the injury to ask questions about it. Instead in his judgment the issue of constructive knowledge should be determined by reference to the knowledge which a person might reasonably be expected to acquire, which must depend on all the circumstances of the case.

In this case the claimant had taken all reasonable steps to obtain advice about his hearing loss but the crux of the challenge was the judge’s decision 

that it was not reasonable to expect a reasonable person in Mr Platt’s position to ask (the Registrar) whether the history of noise exposure which they had discussed (and are mentioned in (the Registrar’s letter) caused or contributed to the symptoms with which Mr Platt presented”

On this issue Vos LJ could not see how it could be anything other than reasonable to expect the claimant to have done so reminding us that the test imposes a demanding standard for the good reasons expressed by Lord Hoffman in Adams and reiterated by Smith LJ in Johnson.

He rejected the claimant’s argument that the fact he had been retired for nine years and that he had suffered multiple ear and hearing problems over the years meant that there was no reason for him to consider whether the noise to which he had been exposed had caused his problem. Neither of these facts suggested 

that the circumstances made it unreasonable to expect him to be curious about the cause of these unpleasant conditions. It was a natural and appropriate question to ask. The purpose of section 14(3) of the Act is not to protect those who do not act reasonably in their own interests to obtain and act upon expert advice.”

The judge had therefore failed to properly apply the applicable test when he took the view that it was harsh to expect the claimant to have asked whether his problems were related to the noise exposure they had already discussed.

Comment

This area of disease litigation is a constant source of controversy despite the growing body of case law giving reasonably clear and robust guidance on how sections 11(4) and 14(3) of the Act should be applied. Those defending NIHL claims are often faced with GP notes littered with references to tinnitus and hearing problems, yet claimants will argue that they are insufficient for him to have acquired either actual or constructive knowledge. In fact, the evidential burden is on the claimant to show he had neither actual knowledge nor ought not to be imputed with constructive knowledge, and the bar is set reasonably high, as is made clear throughout this judgment. The judgment is therefore a very useful tool in the insurer’s armoury when medical records indicate the existence of consultations connected with the hearing loss and/or tinnitus, where no diagnosis has been given. Part of the substantially increased number of deafness claims which insurers are currently being required to deal with can be attributed to the capture of historic claims of the type seen here. This judgment will assist in robust responses to that type of claim through the raising of proper limitation defences.

Contact

For further information, please contact Helen Elsworth on 0113 261 6010.

Further reading

Read the judgment
Read more DWF updates on the issue of limitation

By Dominic Collingwood

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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.

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