Platt -v- BRB (Residuary) Limited
Personal injury claimants will pay the limitation price if they fail to make reasonable enquiries to ascertain what may have caused their injury. In the case of Platt –v- BRB (Residuary) Limited, the Court of Appeal has revisited the question of what constitutes constructive knowledge under the Limitation Act 1980 in the context of a claim for noise induced hearing loss. By finding for the defendant, the court has made it clear that a claimant is expected to make reasonable enquiries and cannot afford to waste time in doing so. Lisa Fletcher takes a look at the decision, and examines how defendants can use it to their benefit.
The claimant worked for the defendant’s predecessors, British Rail, for 35 years from 1953 to 1988. He first consulted his doctor about hearing problems in 1982, and subsequently sought medical attention for hearing problems 12 times between 1982 and 2011.
In 1997 the claimant was referred to a specialist who asked the claimant whether he worked in a noisy environment. He confirmed that he had done, but did not go on to ask whether this may have caused his hearing loss. The specialist did not suggest that it might have done. The specialist did report to the claimant’s GP that the claimant had a history of noise exposure but drew no conclusions from that information.
In 2010, the claimant read an article about industrial hearing loss in a newspaper. This prompted him to contact solicitors and to consult another specialist who concluded that his hearing loss was noise induced. The claimant issued proceedings in October 2011.
The Limitation Act 1980 (the Act) sets out the time limits for bringing claims. For personal injury claims based in negligence the limitation period is three years from either (i) the date on which the cause of action accrued or (ii) the date of knowledge (if later) of the person injured. ‘Date of knowledge’ is defined as being when the claimant first knew that the injury in question was attributable in whole or in part to an act or omission alleged to constitute a breach of duty. This includes knowledge that a person might reasonably have acquired on his own, or with the help of medical or other appropriate expert advice, which it is reasonable for him to seek.
The defendant in this case argued that the claimant was barred from bringing a claim as the date of knowledge was 1997, more than three years before proceedings were issued. This is when the specialist asked the claimant whether he worked in a noisy environment and that question, the defendant said, should have been enough for a reasonable person to ask whether the noisy work environment was a contributing factor. At that point, the claimant should have known that he had a cause of action.
The judge accepted that the claimant only had actual knowledge when he read the newspaper article in 2010. In terms of constructive knowledge, the judge held that in the circumstances of this case, it was not reasonable to have expected the claimant to ask about the cause of his hearing problems before he read the article in 2010. In the judge’s words, ‘to afflict a man who has consulted the medical profession on 12 occasions with constructive knowledge because he did not specifically question their own judgement of what they were telling him is too harsh a test.’
However, the judge did grant the defendant permission to appeal given the ‘lack of clear authority as to the extent to which a claimant who seeks medical advice is expected to question the doctors when no cause for his condition is given.’
Reviewing the previous authorities, the Court of Appeal considered itself bound by the case of London Strategic Health Authority -v- Whiston. In that case, it was held that 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. Here the claimant argued that, given he had ceased working in the noisy environment nine years before the consultation in 1997 he could not reasonably have been expected to link the two together. However, the Court of Appeal considered that as the test contained in the Act imposes a demanding standard, it could not be anything other than reasonable to expect the claimant to ask his specialist, when the point was raised, whether the history of noise exposure caused or contributed to his symptoms.
What does this mean?
Archaic disease claims can be difficult to defend in light of the time that has passed and the inevitable dissipation of evidence. However, this case makes it clear that, for defendants, a proper investigation of the date of knowledge could provide a vital defence. The court’s interpretation of constructive knowledge in this case emphasises that claimants are expected to be inquisitive as to the cause of their injury. Limitation will begin to run from the date that the claimant had the level of knowledge that would prompt a reasonable person to make reasonable enquiry, and a claimant will pay the price if they fail to do so.