Richard Kelly v The Secretary of State for the Department of Transport, Tata Steel UK Limited & Britvic Soft Drinks Limited
Newcastle-upon-Tyne County Court (His Honour Judge Freedman)
22 April 2016

Kam Jaspal (instructed by DWF LLP) for the First Defendant
Richard Seabrook (instructed by DWF LLP) for the Third Defendant

Two defendants represented by DWF in a noise induced hearing loss claim have successfully appealed a first instance decision in which a deputy district judge disapplied the preliminary limitation period pursuant to section 33 of the Limitation Act 1980 so that the claimant’s claim could proceed.

In allowing the appeal His Honour Judge Freedman dismissed the claimant’s claim, finding that the deputy district judge had failed to consider “all the circumstances of the case” and the overall delay which had caused the defendants difficulties in investigating the claim and had therefore prejudiced them in defending the claim. In this article Stephen Symington explains the issues and findings.

Background

The 70 year old claimant brought a claim for noise induced hearing loss which he alleged was sustained as a result of exposure to excessive noise whilst employed by three previous employers between 1982 and 2005. These were British Rail Engineering Ltd (sued as Secretary of State for the Department of Transport who now hold some of the liabilities for ex-British Rail Engineering Ltd employees), British Steel Ltd (sued as Tata Steel Ltd) and Britvic Soft Drinks Ltd.

The claim against the second defendant Tata Steel Ltd settled and the two remaining defendants raised a limitation defence. The matter came before the court for a preliminary trial on the issue of limitation.

Limitation trial

Deputy District Judge Adams found that the claimant’s date of knowledge for the purposes of section 11 of the Limitation Act 1980 was July 2010 and that the limitation period therefore expired in July 2013. As the claimant’s claim was not issued until January 2015, the claim was prima facie out of time. He went on to consider section 33 of the Limitation Act 1980 and whether he should exercise his discretion and disapply the limitation period allowing the claim to continue.

Helen Elsworth of DWF Leeds acting on behalf of the first defendant had filed an unchallenged witness statement setting out the prejudice caused to the first defendant due to the lateness of the claim. The claimant had worked at the Eastleigh Railway Works which was privatised in the 1990s and the company which took over the works went into liquidation in May 2010 before becoming dissolved in December 2011. The witness statement outlined the efforts made to trace the claimant’s managers as possible witnesses but the two managers identified by the claimant had died. As a result, the first defendant had been unable to carry out enquiries with any of the claimant’s managers in relation to his allegations on breach and the use and provision of hearing protection.

Robert Edwards of DWF Birmingham acting on behalf of the third defendant also filed an unchallenged witness statement. The third defendant had been unable to identify any former employees or managers at the Hartlepool site where the claimant worked and that site had closed in 2008. The documents from the Hartlepool site were transferred to the Widford site which had also now closed and none of the historic documents had survived.

Despite the unchallenged evidence of the defendants on the issue of prejudice caused by the lateness of the claimant’s claim, the deputy district judge exercised his discretion and allowed the claim to continue. The decision was made primarily on the basis that the defendants had been aware of the claimant’s claim within the limitation period, as there was correspondence from the claimant’s solicitors requesting pre-action disclosure in 2013. The deputy district judge concluded that the defendants could have preserved their evidence from that time.

Defendants’ appeal

The defendants requested permission to appeal on a number of grounds. These included the failure of the deputy district judge to give proper weight to the prejudice to the defendants which had accumulated since the historic employment; his failure to take account of relevant matters (such as the reliability of the claimant’s evidence, in respect of which he had failed to make any adequate findings); and his failure to consider the issue of proportionality.

The appeal came before His Honour Judge Freedman on 22 April 2016 when he granted permission to appeal before dealing with the substantive issues.

He made it clear that the court’s use of discretion should not normally be interfered with but in this case he was troubled by what had been left out of the judgment. In particular the deputy district judge had not reminded himself of the two unchallenged witness statements from the defendants, when exercising his discretion.

He was also troubled by the claimant’s vague recollection about details of the defendants’ provision of hearing protection and their utility. The claimant’s memory had clearly faded as there were inconsistencies between his pleaded case, his CPR Part 18 responses, his witness statement and his oral evidence. 

Appeal findings

His Honour Judge Freedman found that the deputy district judge had failed to consider all the circumstances in the case and the overall delay. He had dealt with section 33 in only four paragraphs of his judgment (which extended to over 70 paragraphs) and had failed to amplify and explain in his judgment what considerations he had undertaken as to the overall prejudice.

Given the unchallenged witness statements of the defendants and the fact that there were no useful witnesses and very little in the way of documentary evidence, it was extremely difficult for the defendants to properly investigate the claim. The deputy district judge had not properly considered the effect of the passage of time on the reliability of the claimant’s evidence which had been inconsistent, nor had he dealt with the difficulties with apportionment between defendants and the issue of proportionality. This was, on any view, a stale claim.  

These were considerations that should have been at the forefront of the mind of the deputy district judge but were not. Accordingly, His Honour Judge Freedman found that the claim was statute barred against both the first and third defendants and that the section 33 discretion ought not to be exercised.  Both defendants were awarded their full costs of the action and the appeal.

Comment

This case illustrates that in disease claims, limitation continues to be a useful tool for defending claims.

If a claim is found to be out of time under the Limitation Act 1980, it is generally difficult to challenge a judge’s finding on whether section 33 of the Act should be exercised and a claim allowed to proceed, notwithstanding it is out of time, given such a finding is at the discretion of the judge.

That said, where the judge has clearly failed to give proper consideration to the prejudice to the parties and cogency of the evidence, defendants should not shy away from challenging a finding under section 33.  The discretion of the court must be exercised having consideration of all of the circumstances of a case and in accordance with the factors set out at section 33(3).  If this is not reflected in the judgment given on section 33, then consideration should be given as to whether such a decision should be appealed.