23 July, 2014
In the case of Malone v Relyon Heating Engineering  EWCA Civ 904 the issue before the Court of Appeal was whether the judge in the first instant case had appropriately disapplied the limitation period, pursuant to section 33 Limitation Act 1980.
The claimant sought damages from his employer, Relyon Heating Engineering Ltd for alleged noise induced hearing loss and moderate tinnitus arising out of his 27 years of employment between 1977 and 2004.
The defendant was notified of the claimant's claim in 2009 and the claimant issued his claim in 2011. The claimant accepted that he had had constructive knowledge of the noise induced loss by 2001.
The first instant judge found that the Claimant had been exposed to "injurious levels of noise" whilst employed by the defendant and had not been provided with adequate hearing protection. She found that the cause of action regarding the entire period of employment had accrued when the injury was "completed", i.e. when the claimant ceased working for the defendant in 2004. The judge decided that the determination of whether the primary limitation period had expired in 2004 or 2007 was critical to the exercise of her discretion under s.33. She concluded that the delay between 2007 and 2009 had not materially compromised the defendant's ability to defend the claim, and exercised her discretion under s.33 to disapply the limitation period.
The Court of Appeal found that the judge was incorrect in disapplying the relevant limitation period that the judge should have identified two periods of delay: 2004 to 2009 for the pre-2001 damage, and 2007 to 2009 for the post-2001 damage. It was held that there can be more than one limitation clock, one from the date of constructive knowledge and one from the date that the injury is completed. The limitation clock can start to run even though the damage is ongoing.
Proportionality was also considered, the judge's award for the entire 27 year period would have been £3375. The value for the exposure from 2001 - 2004 would have been exceedingly small since most of the injury would have been inflicted prior to that time. It was therefore considered inequitable for this part of the claim to proceed.
In light of this Court of Appeal case, defendants should therefore consider limitation carefully when dealing with latent disease claims.