Joseph Johnson v Ministry of Defence [2012] – Court of Appeal

Dealt with the issue of constructive knowledge for the purpose of s14 (3) Limitation Act 1980.

Concerns limitation in a noise-induced hearing loss case.

The facts of the case are that Mr Johnson claimed that he had been exposed to excessive noise during the course of his employment with the MOD at Chatham Dockyard up to the late 1970s.

The Claimant accepted that at times he had been told to wear ear defenders and that he knew noise could damage hearing. However, he claimed that when he became deaf in 2001 he did not associate it with his noisy employment. He put it to down to ageing.

In 2006 he visited his GP about something unrelated and mentioned his hearing. The GP said that any hearing problem was due to his age, which at the time was 66.

In 2007 he was approached by a claims management company. He subsequently attended an ENT expert and commenced proceedings against the MOD in 2010.

The issue arose as to his date of knowledge for the purpose of s14 Limitation Act 1980, in particular when he knew or ought to have known that his injury was attributable to the MOD’s alleged breach of duty.

The Claimant argued that his date of knowledge was after 2007 – he said that prior to this time it was not unreasonable of him not to pursue more enquiries than he had.

At Trial the Claimant accepted that he had actual knowledge of deafness (and therefore of significant injury for the purpose of s14 LA) in 2001 but said that he did not know the cause. He had originally argued that he didn’t know his injury was significant until he attended the ENT expert in 2009.

The Judge at first instance dismissed the claim on limitation grounds, holding that for the purpose of s11 and s14 Limitation Act 1980 the Claimant had knowledge of his cause of action by 2001. Further the Judge declined to exercise his discretion under s33.

The Claimant appealed.

On appeal, Lady Justice Smith held that by 2001 the Claimant had sufficient knowledge for the limitation period to start. She said that the correct approach was not to consider whether what the Claimant had done was “not unreasonable” but what the reasonable man in the Claimant’s position would have done.

She looked at the case of Bracknell Forest Council v Adams [2005] which held that generally the reasonable man would be sufficiently curious about the cause of the significant injury to seek whatever advice was appropriate.

The Court also looked at the case of MOD v AB & others [2010] in which the Supreme Court said that “it is the knowledge of possibilities that matters, a Claimant needs only enough knowledge for it to be reasonable for him to set about an investigation”.

In the case of AB & others, the Claimant veterans had long believed, or at least suspected, that their various illnesses were due to exposure to radiation. What they lacked was the medical evidence to confirm it. The Supreme Court held that they had knowledge because they knew of the possibility that their conditions were related to radiation.

In the context of this case it was significant that the claimant lived in the area of the Chatham dockyard where the alleged noise exposure occurred. The GP was also in the same area. Lady Justice Smith said that if the claimant had consulted his GP about the cause of his hearing loss the GP would probably have asked about his working history. The likelihood that the hearing loss was caused by noise would then have come to light.

Lady Justice Smith said shipbuilding was notoriously noisy in the 1960s and 1970s “and it would be surprising if GPs had not come across those with deafness as a result of employment in the dockyard”.

Lady Justice Smith said that “a reasonable man in the 21st century would be curious about the onset of deafness at a relatively early age of 61 and would wish to find out what was causing it”.

“A reasonable man in the circumstances and with the factual knowledge of this claimant” would have consulted his GP by the end of 2002 and by the end of the year should be deemed to have had knowledge that his deafness might be attributable to work.

The appeal was dismissed.