A recent Court of Appeal ruling has offered guidance on the 'date of knowledge' for the purpose of arguing limitation in deafness claims.
Mr Platt, a 76 year old gentleman, was employed as an engineer working at the British Rail Engineering works in Crewe between 1953 and 1988. In 1997 he was diagnosed with significant hearing loss by his GP. It was not until 2011, however, that a noise induced hearing loss claim was issued against his former employer, Mr Platt having read an article about noise induced hearing loss claims a year earlier.
The question therefore arose of when Mr Platt would have had knowledge that his hearing loss would have arisen as a result of him working with British Rail.
The date of knowledge was particularly important in light of the restrictions set out in the Limitation Act 1980 which stipulates at section 11(4) that limitation period in respect of claims for noise induced hearing loss is three years from:
- The date on which the cause of action accrued; or
- The date of knowledge (if later) of the person injured.
The issue of the 'date of knowledge' is defined in section 14 (1) of the Act as the date the Claimant first had knowledge that the injury was significant, attributable to the act or omission which is alleged to constitute a breach of duty and that he knew the identity of the defendant.
Section 14(3): explains that for the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
In the first instance the judge found that the 'date of knowledge' was 2010 as Mr Platt did not have actual knowledge that the hearing loss was noise induced until he read a newspaper article on the topic. However, on appeal the Court considered whether it would have been reasonable for Mr Platt to have asked his doctor about the cause of his tinnitus and deafness in 1997, particularly as it transpired that Mr Platt came very close to finding out that his tinnitus and deafness were at least partly noise induced at that time.
When considering the merits of the case Lord Justice Vos stated:
'Neither the fact that Mr Platt had been retired 9 years, nor that he had multiple ear and hearing problems over the previous years, suggests to me that the circumstances made it unreasonable to expect him to be curious about the cause of these unpleasant symptoms. It was a natural and appropriate question to ask. The purpose of section 14(3) of the 1980 Act is not to protect those who do not act reasonably in their own interests to obtain and act upon expert advice.'
Consequently the appeal was allowed and the date of knowledge was deemed 1997 resulting in the Claimant being out of time in bringing his claim.
This ruling offers further ammunition when defending noise induced hearing loss claims. In instances where the employer appears to have breached the applicable common law or statutory provisions, the Claimant's medical records should be obtained and reviewed to determine not only whether the claimant knew that their hearing loss was noise induced, but also whether he was in a position where it would have been reasonable for him to ask the question of whether it was noise related.
A robust stance to the limitation argument, off the back of Platt v BRB, may provide a defence to deafness claims that would have otherwise succeeded, a welcome notion in light of the rising number of deafness claims in recent times.