MALONE V RELYON HEATING ENGINEERING LIMITED [2014] EWCA Civ 904
Surrey Personal Injury – Limitation
FACTS:-
The Claimant sought damages for alleged noise-induced hearing loss and moderate tinnitus arising out his employment over a period of 27 years with the Defendant. The Defendant was was notified of the potential claim in a letter dated 13 March 2009 and proceedings for negligence and breach of statutory duty were issued on 21 January 2011. There was agreement that the full value of the hearing loss was £13,500. The judge found for the respondent and following apportionment (to allow for noise for which the Defendant was not responsible), he was awarded £3,375. The Defendant appealed.
JUDGMENT:-
Lord Justice Fulford said that the sole issue in the appeal was whether the judge appropriately disapplied the limitation period, pursuant to section 33 Limitation Act 1980. Fulford LJ considered sections 11 and 33 of the Limitation Act 1980. The judge had found that the Defendant employed the Claimant between 1977 and 2004, save that for five years between 1988 and 1993 he was treated as self-employed. Prior to commencing work with the appellant, he served for two years in the army and he worked for about 11 years with another employer in circumstances that may have adversely affected his hearing.
A Consultant Forensic Engineer, Mr Dawson, who was jointly instructed by the parties, was of the opinion that if the respondent's evidence was accepted there had been a breach of duty in relation to noise exposure. The parties also jointly instructed Mr John Pickles, a Consultant Otolaryngologist Head and Neck surgeon, who reported on 21 August 2012. He concluded that the respondent became aware of damage to his hearing in or about 2000: he first saw his general practitioner on 5 October 2000 and he was referred to a specialist (an ENT surgeon) on 17 January 2001 who provided him with a hearing aid. He developed, most probably in the latter part of 2000, what is described as "moderate" tinnitus as a result of an accident when there was a loud compressed air escape. Mr Pickles concluded that the Claimant had experienced hearing loss of 46 db (23 db from exposure to excessive noise, 22 db as a consequence of ageing and 1db on account of vascular disease). He had been aware of his hearing loss from the 1990s, thereby demonstrating that the explosive event in 2000 was not the sole cause of his impaired hearing.
The Defendant was still trading in 2004 and it was dissolved on 22 October 2010. The proceedings were issued on 21 January 2011. On 6 June 2011 the Claimant contacted the liquidators by telephone asking for relevant personnel and occupational health records, along with the details of any noise surveys. The liquidators disclosed that the company records, which had been held in storage, had been destroyed although they should have been kept for 12 - 15 months following the date of dissolution. In the event, no relevant documents had been found. On 14 November 2012 the appellant carried out a director search to identify the former directors of the company. The five directors to whom they wrote failed to respond.
It was accepted by the Claimant that he had constructive knowledge within the meaning of sections 11 and 14 of the Limitation Action Act 1980 by the end of January 2001. The Claimant invited the judge to exercise her discretion under section 33 of the Act as regards injury to his hearing incurred during his employment, on the basis that the damage was continuous and the issues were the same for the entirety of the period.
Fulford LJ referred to two cases:-
Fulford LJ said that the judge had erroneously decided that the only relevant period of delay was between 2007 and 2009. Instead, she should have identified the two periods of delay: 2004 – 2009 for the pre-2001 damage and 2007 – 2009 for the post-2001 damage. There was no proper basis for the judge to suspend or put back the limitation period for the earlier period or to treat the injury for the entirety of the respondent's employment as being indivisible, given that apportionment was possible in hearing loss cases and was appropriate in the present case. The judge should have considered, separately, whether to allow the case to proceed for the pre-2001 injury, bearing in mind the prejudice caused by the delay since 2004, and whether to allow the case to proceed for the post-2001 injury. It is to be stressed that the decision as regards the first period was potentially relevant to her decision on the second, given the court needed to have regard to all the circumstances of the case, and that inevitably included considering why this had become, overall, a distinctly stale claim for damages.
Since the judge applied the wrong approach, it was the responsibility of the Court of Appeal court to re-exercise the discretion provided by section 33 of the Limitation Act.
Pre - 2001 injury
In 2004 the company was still trading, whereas by 13 March 2009 – when the Defendant was notified of the claim – the company had gone into liquidation. The relevant personnel and occupational health records, along with the details of any noise surveys, were destroyed some time before 6 June 2011, although in accordance with the relevant policy they should have been retained at least until October 2011. The five years' delay in notifying the Defendant of the proposed proceedings made it substantially more difficult for the parties to adduce relevant evidence as to, first, the levels of noise to which the Claimant had been subjected; second, the degree to which he worked in circumstances of excessive noise; and, third, whether he was provided with hearing protection (and the extent to which he wore it). Inevitably the opportunity to secure evidence from directors of the company and the appellant's supervisors or work colleagues had diminished over the years. In addition, the ability to investigate the extent to which the Claimant’s hearing loss was the result of working in conditions for which the Defendant was not responsible similarly lessened with the passing of time. No relevant documents had been found and, save for one witness, no evidence was available from witnesses who had direct knowledge of the relevant working conditions.
Addressing the factors set out in section 33(3) Limitation Act, under a) the delay in commencing proceedings as regards the pre-2001 injury was inordinate and it was insufficiently justified by reference to the Claimant having read an article about hearing loss in 2008. As to b), for the reasons already set out, the evidence adduced at trial was markedly less cogent than it would have been if the action had been commenced within the time limit set out in section 11 Limitation Act. For c), there was a real element of dilatoriness on the part of the Claimant after the insurers were notified of the claim, and they significantly delayed in pursuing some of the significant lines of enquiry. Factor d) was not relevant and for e), the Claimant acted promptly once he had read the article in the press. Neither party had relied on factor f).
The length of the delay as regards the pre-2001 injury had led to very considerable forensic prejudice for the Defendant. The prejudice to the Defendant outweighed the prejudice to the Claimant for the purposes of section 33(1) Limitation Act and it would not be equitable to allow the action as regards the pre-2001 injury to proceed.
Post-2001 injury
The court would consider the overall circumstances of the case and this would include an analysis of the prejudice already created as regards the pre-2001 injury when assessing the post-2001 period. As discussed earlier, apportionment is appropriate in hearing loss cases but the delays in this case on the part of the Claimant had made it particularly difficult to assess the extent of any injury between 2001 and 2004. The damage to the Defendant’s hearing was inflicted over a considerable period of time and the entirety of the delay had rendered it hard to determine the nature of any harm in the later period. It followed that a narrow focus on the period 2007 – 2009 was inappropriate, and the prejudice to the Defendant must be assessed by reference to the delay on the part of the Claimant in the context of the case as a whole, given particularly the continuing harm of which he had constructive notice in early 2001. Fulford LJ referred to the following cases:-
· Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 A.C. 76
· Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128
These cases raised the issue of proportionality – it would be unfair to expect a Defendant to defend a small claim brought after limitation. Given the judge's award for the entire period was £3,375, the value of the claim for the period 2001 – 2004 would be exceedingly small, since most of the injury had been inflicted prior to that time. For these reasons, for the later period also, Fulford LJ would conclude the prejudice to the Defendant outweighed the prejudice to the Claimant, and, re-exercising the section 33 discretion, he considered it was inequitable to allow this part of the claim to proceed. He would allow the appeal.
Lady Justice Arden and Lord Justice Jackson agreed.
Surrey Personal Injury – Limitation
FACTS:-
The Claimant sought damages for alleged noise-induced hearing loss and moderate tinnitus arising out his employment over a period of 27 years with the Defendant. The Defendant was was notified of the potential claim in a letter dated 13 March 2009 and proceedings for negligence and breach of statutory duty were issued on 21 January 2011. There was agreement that the full value of the hearing loss was £13,500. The judge found for the respondent and following apportionment (to allow for noise for which the Defendant was not responsible), he was awarded £3,375. The Defendant appealed.
JUDGMENT:-
Lord Justice Fulford said that the sole issue in the appeal was whether the judge appropriately disapplied the limitation period, pursuant to section 33 Limitation Act 1980. Fulford LJ considered sections 11 and 33 of the Limitation Act 1980. The judge had found that the Defendant employed the Claimant between 1977 and 2004, save that for five years between 1988 and 1993 he was treated as self-employed. Prior to commencing work with the appellant, he served for two years in the army and he worked for about 11 years with another employer in circumstances that may have adversely affected his hearing.
A Consultant Forensic Engineer, Mr Dawson, who was jointly instructed by the parties, was of the opinion that if the respondent's evidence was accepted there had been a breach of duty in relation to noise exposure. The parties also jointly instructed Mr John Pickles, a Consultant Otolaryngologist Head and Neck surgeon, who reported on 21 August 2012. He concluded that the respondent became aware of damage to his hearing in or about 2000: he first saw his general practitioner on 5 October 2000 and he was referred to a specialist (an ENT surgeon) on 17 January 2001 who provided him with a hearing aid. He developed, most probably in the latter part of 2000, what is described as "moderate" tinnitus as a result of an accident when there was a loud compressed air escape. Mr Pickles concluded that the Claimant had experienced hearing loss of 46 db (23 db from exposure to excessive noise, 22 db as a consequence of ageing and 1db on account of vascular disease). He had been aware of his hearing loss from the 1990s, thereby demonstrating that the explosive event in 2000 was not the sole cause of his impaired hearing.
The Defendant was still trading in 2004 and it was dissolved on 22 October 2010. The proceedings were issued on 21 January 2011. On 6 June 2011 the Claimant contacted the liquidators by telephone asking for relevant personnel and occupational health records, along with the details of any noise surveys. The liquidators disclosed that the company records, which had been held in storage, had been destroyed although they should have been kept for 12 - 15 months following the date of dissolution. In the event, no relevant documents had been found. On 14 November 2012 the appellant carried out a director search to identify the former directors of the company. The five directors to whom they wrote failed to respond.
It was accepted by the Claimant that he had constructive knowledge within the meaning of sections 11 and 14 of the Limitation Action Act 1980 by the end of January 2001. The Claimant invited the judge to exercise her discretion under section 33 of the Act as regards injury to his hearing incurred during his employment, on the basis that the damage was continuous and the issues were the same for the entirety of the period.
Fulford LJ referred to two cases:-
- Donovan v Gwentoys [1990] 1 W.L.R. 472
- Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717
Fulford LJ said that the judge had erroneously decided that the only relevant period of delay was between 2007 and 2009. Instead, she should have identified the two periods of delay: 2004 – 2009 for the pre-2001 damage and 2007 – 2009 for the post-2001 damage. There was no proper basis for the judge to suspend or put back the limitation period for the earlier period or to treat the injury for the entirety of the respondent's employment as being indivisible, given that apportionment was possible in hearing loss cases and was appropriate in the present case. The judge should have considered, separately, whether to allow the case to proceed for the pre-2001 injury, bearing in mind the prejudice caused by the delay since 2004, and whether to allow the case to proceed for the post-2001 injury. It is to be stressed that the decision as regards the first period was potentially relevant to her decision on the second, given the court needed to have regard to all the circumstances of the case, and that inevitably included considering why this had become, overall, a distinctly stale claim for damages.
Since the judge applied the wrong approach, it was the responsibility of the Court of Appeal court to re-exercise the discretion provided by section 33 of the Limitation Act.
Pre - 2001 injury
In 2004 the company was still trading, whereas by 13 March 2009 – when the Defendant was notified of the claim – the company had gone into liquidation. The relevant personnel and occupational health records, along with the details of any noise surveys, were destroyed some time before 6 June 2011, although in accordance with the relevant policy they should have been retained at least until October 2011. The five years' delay in notifying the Defendant of the proposed proceedings made it substantially more difficult for the parties to adduce relevant evidence as to, first, the levels of noise to which the Claimant had been subjected; second, the degree to which he worked in circumstances of excessive noise; and, third, whether he was provided with hearing protection (and the extent to which he wore it). Inevitably the opportunity to secure evidence from directors of the company and the appellant's supervisors or work colleagues had diminished over the years. In addition, the ability to investigate the extent to which the Claimant’s hearing loss was the result of working in conditions for which the Defendant was not responsible similarly lessened with the passing of time. No relevant documents had been found and, save for one witness, no evidence was available from witnesses who had direct knowledge of the relevant working conditions.
Addressing the factors set out in section 33(3) Limitation Act, under a) the delay in commencing proceedings as regards the pre-2001 injury was inordinate and it was insufficiently justified by reference to the Claimant having read an article about hearing loss in 2008. As to b), for the reasons already set out, the evidence adduced at trial was markedly less cogent than it would have been if the action had been commenced within the time limit set out in section 11 Limitation Act. For c), there was a real element of dilatoriness on the part of the Claimant after the insurers were notified of the claim, and they significantly delayed in pursuing some of the significant lines of enquiry. Factor d) was not relevant and for e), the Claimant acted promptly once he had read the article in the press. Neither party had relied on factor f).
The length of the delay as regards the pre-2001 injury had led to very considerable forensic prejudice for the Defendant. The prejudice to the Defendant outweighed the prejudice to the Claimant for the purposes of section 33(1) Limitation Act and it would not be equitable to allow the action as regards the pre-2001 injury to proceed.
Post-2001 injury
The court would consider the overall circumstances of the case and this would include an analysis of the prejudice already created as regards the pre-2001 injury when assessing the post-2001 period. As discussed earlier, apportionment is appropriate in hearing loss cases but the delays in this case on the part of the Claimant had made it particularly difficult to assess the extent of any injury between 2001 and 2004. The damage to the Defendant’s hearing was inflicted over a considerable period of time and the entirety of the delay had rendered it hard to determine the nature of any harm in the later period. It followed that a narrow focus on the period 2007 – 2009 was inappropriate, and the prejudice to the Defendant must be assessed by reference to the delay on the part of the Claimant in the context of the case as a whole, given particularly the continuing harm of which he had constructive notice in early 2001. Fulford LJ referred to the following cases:-
· Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 A.C. 76
· Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128
These cases raised the issue of proportionality – it would be unfair to expect a Defendant to defend a small claim brought after limitation. Given the judge's award for the entire period was £3,375, the value of the claim for the period 2001 – 2004 would be exceedingly small, since most of the injury had been inflicted prior to that time. For these reasons, for the later period also, Fulford LJ would conclude the prejudice to the Defendant outweighed the prejudice to the Claimant, and, re-exercising the section 33 discretion, he considered it was inequitable to allow this part of the claim to proceed. He would allow the appeal.
Lady Justice Arden and Lord Justice Jackson agreed.