The Court of Appeal’s decision in Platt v BRB (Residuary) Limited1 is a useful reminder for defendants, and their insurers, of the strict limitation test applicable to claimants attempting to bring themselves within the “date of knowledge” sections of the Limitation Act 1980.
Mr Platt brought a personal injury claim against his former employers, British Rail (BRB), for whom he had worked for some 35 years, until 1988. He claimed for damage to his hearing arising out of what the judge described as a “very noisy working environment”.
Mr Platt began complaining to his GP about his hearing in 1982. He consulted various doctors (including a specialist ENT Registrar), but it was not until 2011 that he was told that part of his hearing loss was noise induced. This was after he had read a newspaper article about industrial hearing loss and tinnitus. From there he consulted solicitors and subsequently issued proceedings in October 2011. The medical professionals he had earlier consulted had “said basically, ‘you’re just suffering from deafness’… they did not tell him why or what was the cause of it”.
BRB alleged that the claim was statute-barred under section 14 of the Limitation Act 1980, on the basis that Mr Platt had “constructive knowledge” by 1997 at the latest that his injury was attributable to the acts/omissions of his employers.
At first instance, it was held that Mr Platt did not have “actual knowledge” of the possibility that his hearing loss was noise induced until he read the newspaper article in 2010, within three years of issuing proceedings. Furthermore, His Honour Judge Halbert applied an objective test, and concluded that Mr Platt did not have “constructive knowledge” of the cause of his hearing loss 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.”
Court of Appeal’s Decision
The Court of Appeal reversed the judge’s decision, and fixed Mr Platt with constructive knowledge, reiterating that the test for constructive knowledge “imposes a demanding standard” on claimants. Mr Platt’s claim was disallowed and judgment given in favour of BRB.
Lord Justice Vos reviewed earlier case-law authority and affirmed that the test set out by Lord Justice Dyson in London Strategic Health Authority v Whiston2 was the appropriate binding test (and the judge at first instance had applied the wrong test). In particular, the court has to consider what knowledge the claimant might reasonably have been expected to acquire from the medical advice which it was reasonable for him to seek. Here, the Court of Appeal expected Mr Platt, having been told by a specialist that he suffered from hearing loss, to go on and ask what had caused his hearing loss (if he had, he would have been informed that his tinnitus and hearing loss were noise induced).
This is a helpful case for insurers, and a useful reminder of the law on date of knowledge: in particular the steps that claimants are expected to take to acquire knowledge of the cause of their injuries. This decision reiterates that it is not enough for claimants simply to obtain medical advice about their injuries. They have a responsibility to ask (obvious) questions – such as, why. Mr Platt was reasonably expected, using an objective test, to go on to ask whether the problems he was experiencing were caused by noise exposure.
Defendants and their insurers therefore have an additional basis for challenging limitation. They will wish to closely scrutinise whether claimants have taken all reasonable steps, and asked enough questions, before accepting a later date of knowledge. Insurers might find that many claims may be resisted on grounds of constructive knowledge.