There are a couple of cases of interest reported within the last quarter as to the application of the Limitation Act 1980, namely Johnson v Ministry of Defence30 and Sayers v Chelwood.31
In Johnson the claimant appealed against the dismissal of his claim on account of it being statute barred. The claimant had ceased employment which involved any loud noise in 1979 but in 2001 he became aware of a hearing problem. He did not, however, immediately investigate the reason for this problem. In 2006 he raised a concern about his hearing with a doctor during a consultation, although this was in the context of another unrelated matter. By this time the claimant was 66 and the doctor said that the probable cause for the hearing loss was age, and it was not then until 2009 that the claimant consulted an expert and found that he had a significant injury which was attributable to noise exposure. The Court of Appeal held that a reasonable man in the circumstances of the claimant would have been curious about the cause of his deafness at the relatively young age of 61 and would have consulted his GP by the end of 2002, and it further held that had an open question about the cause of the deafness been asked at that time, then the possibility of noise related deafness would have arisen. The claimant therefore was deemed to have had knowledge by the operation of section 14 (3) of the Limitation Act 1980 by the end of 2002 and the primary limitation period was found to have expired by 2005.
In Sayers the defendants32 had employed the claimant as a gardener until 2000. By this time he was suffering from hearing loss and tinnitus, and in 2002 a nurse told him that this may have been caused by exposure to noise at work. He consulted a GP in 2005 and then was referred to a specialist in 2006. He eventually sent a letter of claim in 2008 and issued proceedings in 2009. A circuit judge, on appeal from a district judge, held that the claimant’s date of knowledge was 2002 and he did not exercise his section 33 discretion for a number of reasons, including prejudice and inexplicable delay. The circuit judge described the burden on J as “heavy” in persuading the court to exercise its discretion under section 33. On appeal as to the test applied by the circuit judge, the Court of Appeal found that burden could not necessarily be described as a heavy one, and that the House of Lords had previously described the discretion as broad and unfettered, and in the abstract the Court of Appeal held that no more should be said other than that the burden was on the claimant. In the circumstances the circuit judge had applied the wrong test. However, the appeal was dismissed as the prejudice to the surviving defendant far outweighed the prejudice to the claimant.