Defendant Succeeds on Limitation - Claim for HAVS Statute Barred

Article

03 March, 2015

Seddon v Salford Council

Forbes has successfully defended a HAVS claim on the basis that the claim should be statute barred. The Claimant in this matter alleged excessive exposure to vibratory tools between 1979 to 2003. He alleged that he developed Hand-Arm Vibration Syndrome (HAVS) through his employment as a gardener and tree surgeon.

The Claimant was diagnosed with vibration white finger in 2001. However, following the termination of his employment later in 2003, the Claimant did not commence proceedings until April 2013. The Defendant therefore argued that the claim was statute barred.

At the hearing, the only issue before the Court was whether the statutory limitation provisions should be dis-applied pursuant to Section 33(1) of the 1980 Act. This required the judge to assess whether it would be equitable to allow the action to proceed. Section 33(3) required the Judge to have regard to the following, namely:

  1. the length of, and the reasons for, the delay on the part of the Claimant;
  2. the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the Claimant or the Defendant is or less cogent than if the action had been brought within the time allowed by Section 11;
  3. the conduct of the Defendant after the cause of action arose;
  4. the duration of any disability of the Claimant arising after the date of the accrual of the cause of action;
  5. the extent to which the Claimant acted promptly and reasonably;
  6. the steps, if any, taken by the Claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

After consideration of the above matters, the Judge came to the conclusion that it would not be equitable for the action to proceed further. There was no good or substantial ground to allow the claim to proceed. There was a delay of some seven years until the commencement of proceedings. At the latest he was aware in early 2003. Therefore prior to the expiry of the primary limitation period, he was well aware that it was open to him or, at least, might be open to him to bring a claim against the Defendant.

The Claimant failed to provide a satisfactory explanation for his delay during this period and, more particularly, his failure at least to seek professional advice. In March 2012, the Claimant stated he was prompted to take legal advice when he saw an advertisement in a national newspaper alerting him to the possibility of claims in cases such as his. The Judge commented "the Claimant is culpable of inexcusable delay for a period of some five years or thereabouts from 2007 until March 2012".

The Judge also had concerns regarding the extent to which the delay would effect the evidence. The Judge remarked that "there is good reason to suggest that the evidence adduced will be less cogent than it would have been had it not been for the period of inexcusable delay".

The Judge also reflected on the conduct of the Defendant after the cause of action arose. He found that there was no suggestion that the Defendant had failed to co-operate with the Claimant.

The Claimant's Section 33 application was therefore duly dismissed, the case was struck out and the Defendant was awarded its costs.

Forbes Comment

By finding for the Defendant, the Judge has reinforced that the Court will not take a relaxed attitude towards limitation. The delay by the Claimant in bringing the claim was inexcusable and would have had a detrimental effect on the Defendant's ability to be able to defend the claim. The detailed investigation by the Defendant and the emphasis on when exactly the Claimant first became aware of his condition and the subsequent delay in bringing proceedings ultimately led to the Defendant's success.

For further information please contact Andrew Ellis on 0161 918 0000 or email Andrew Ellis

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