NIHL claim was out of time

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02 September, 2020

The Claimant claimed damages following the development of hearing loss and tinnitus caused by alleged exposure to excessive levels of noise during his employment as a welder with the Defendant between 2002 and 2012.

It was alleged that the Claimant could not wear ear defenders when wearing his welding mask, that hearing protection was not provided when he worked on site, and there was limited availability in the workshop, that there were no hearing protection zones and that the Claimant was not provided with information or training concerning the dangers of noise. The medical experts both agreed that the Claimant had suffered a hearing loss as a result of noise, and the joint engineer agreed that the noise levels were significant (if hearing protection was not worn).

The Defendants denied liability, but the main issue at the trial on 13 July 2020 was the issue of limitation.

The Claimant said in his statement that he was aware of hearing loss in around 2007 or 2008. There was no evidence of a significant change on his hearing after that date. No explanation was proffered as to why the Claimant did not consult solicitors in 2007/2008. The Defendants argued therefore that the Claimant had (or ought reasonably to have acquired) the requisite "knowledge" within the meaning of Sections 11(4)(b) and 14 of the Limitation Act 1980 by that date and that accordingly the limitation period expired in 2010 or 2011. The Claim form was issued on 3 December 2018, and it was contended that this was some 7 or 8 years after the claim was statute barred.

The Trial Judge agreed with the Defendants on the Claimant's date of knowledge, and that the claim was brought too late.

The Claimant then sought to disapply the time bar pursuant to section 33 of the Limitation Act 1980. Section 33(1) requires the Court to balance the prejudice to the Claimant which would be caused by an application of the limitation period with the prejudice to the Defendant which would be caused by disapplication of the limitation period.

The Defendants denied that it would be equitable for the Court to disapply the primary limitation period, as they had suffered significant prejudice as a result of the delay. In particular the Defendant company went into administration in December 2014 and was dissolved in April 2017. Employees were no longer employed and had dispersed - in particular two former employees did not respond to requests to assist in providing witness evidence to assist in the defence of this claim. This would not have been the case had the claim been commenced in time. Further the Claimant's ability to recall events which occurred up to 18 years ago was now impaired by the passage of time. Accordingly, in respect of the central factual issue, namely whether hearing protection was provided and enforced, the evidence before the court was far less cogent and balanced than would have been the case had this claim be brought in time and is now almost entirely reliant on the accuracy of the Claimant's recollection which can no longer be properly challenged by way of cross-examination.

In Robinson v St Helens MBC [2003] PIQR P128 at P139-140 Sir Murray Stewart-Smith said:

"The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. …. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.

The Judge agreed with us that the Claimant had failed to establish that it was equitable for the claim to proceed, and he agreed that the Defendants had suffered significant prejudice.

Accordingly the Claimant's claim was dismissed.

Forbes Comment

The case shows that in disease claims, which are often brought many years after the relevant period of employment has ended and where evidence is often no longer available for Defendants to mount a defence, the issue of limitation can be a formidable weapon in a Defendant's armour, so as to defeat the claim altogether.

For more information contact Annette Siallagan in our Insurance department via email or phone on 0113 532 3370. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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