Limitation in Noise Induced Hearing Loss cases

29 January 2015

Often a potential defence for insurers will be limitation in NIHL cases.  The relevant investigations are:

• When does the 3 year time limit start to run?  In other words when did the cause of action accrue or (more usually) when did the claimant have actual or constructive knowledge? 
• If the Plaintiff is out of time, can  the Court exercise its discretion to allow the claim under Article 50 of the Limitation (NI) Order 1989?

Last year the Court of Appeal considered these issues in Malone v Relyon Heating Engineerng Limited [2014] EWCA Civ 904 where it dismissed the Plaintiff's claim and provided helpful guidance on the correct approach to exercise the Section 33 (english law equivalent to Article 50) discretion to disapply the limitation period.  The Appeal Court also rejected Plaintiff Counsel's argument that the limitation period was extended because the plaintiff continued to work for the Defendant after the Plaintiff's date of knowledge and the injury was cumulative. 

This was a case where breach of duty on the part of the defendant was accepted by the engineer  instructed by both parties.  The Defendant company went into liquidation and was subsequently dissolved 5 months after the Defendant's EL insurers received the letter of claim.  Proceedings issued in January 2011.  All records had been destroyed and there was no trace of any relevant witnesses. 

The plaintiff's constructive knowledge was accepted as being at the end of January 2001.  The Plaintiff maintained that, as he continued to be exposed to excessive noise levels in his employment with the Defendant until 2004, the limitation period only expired in 2007.  He also sought application of the Section 33 discretion.

The Court of Appeal considered the injury was divisible into the pre-2001 injury and post-2001 injury (an approach not adopted at first instance).  In respect of the former it found that there was considerable prejudice to the defendant and this outweighed the prejudice to the claimant.  In respect of the latter the Appeal court said;

a.) it was necessary for it to consider the overall circumstances of the case including the prejudice already created regarding the pre-2001 injury 

b.) the fact the medical expert had only been able to opine that NIHL might have occurred after 2001 so delay by the plaintiff had made it particularly difficult to assess the extent of any injury post 2001

c.) it was necessary for proportionality to be taken into account.  The Judge had awarded £3,375 for the entirety of the period of employment therefore the 2001-2004 portion would be extremely modest.  The Court therefore refused to exercise its discretion in both periods.

One final note is that the Court cited the earlier CA decision in the case of Sayers v Lady Chelwood [2012] EWCA Civ 1715 that the Plaintiff who issues late is seeking the indulgence of the Court and that such indulgence is exceptional in the sense that the claimant is seeking an exemption from the normal consequences of failing to commence proceedings within the limitation period.

For further information contact Gail Mooney.  Murphy O'Rawe - "To lead and to guide."