Johnson v Ministry of Defence and Hobourn Eaton Ltd [21.11.12]


Kennedys successfully defends claim for noise induced hearing loss in Court of Appeal; Claimant’s date of knowledge considered.

Implications

  • A claimant cannot not rely on his ignorance of a medical condition if a reasonable person, faced with the same symptoms, would have sought advice at an earlier date.
  • The prospect of a claimant being fixed with an earlier date of knowledge has increased.

Background

The Claimant worked at Chatham Dockyard for the Ministry of Defence (MOD) from 1965 to 1970 and from 1974 to 1979. He was exposed to very loud noise and, subject to its limitation defence, the MOD admitted liability. From 1969 to 1970 the Claimant was employed by the Second Defendant and alleged he was exposed to loud noise. The Second Defendant denied liability. Limitation was considered as a preliminary issue.

The Claimant said that he noticed hearing loss symptoms in 2001 but it was not until he was approached by a claims company in 2007 that he thought about making a claim. He was examined by a consultant ENT surgeon in April 2009 and was diagnosed with severe deafness. The Claimant contended for a date of knowledge of April 2009.

At first instance, His Honour Judge Scarratt held that the claim had been brought out of time.

Decision

The Court of Appeal dismissed the Claimant's appeal:

  • The correct approach was set out in Bracknell Forest Borough Council v Adams [2005]. Section 14(3) Limitation Act 1980 required an objective approach. The test was what a person with the essential characteristics of the Claimant (such as age and mental capacity) would do if acting reasonably. There would be an assumption that a person who had suffered a significant injury would be sufficiently curious to seek advice unless there were reasons why a reasonable person in his position would not have done so.
  • In the Claimant’s circumstances, a reasonable man would have consulted his GP by about the end of 2002. This allows around a year for "thinking time" between the time when he realised that he had a significant condition and the date on which he ought reasonably to have taken expert advice. The time to be allowed must depend on the nature of the condition. With a condition such as deafness which presents in an insidious way, about a year should be allowed for consideration.
  • It followed that by the end of 2002 the Claimant had knowledge that his deafness might be attributable to his exposure to noise whilst in the employment of the Defendants. Primary limitation therefore expired by the end of 2005.
  • The Claimant had accepted that the trial Judge had not erred in his consideration of s.33. Accordingly there was no question of whether discretion should be exercised to extend the limitation period.