The decision of the Court of Appeal in Johnson v Ministry of Defence  P.I.Q.R. P7,  E.W.C.A.
Civ 1505 provides a potential “knockout blow” for Defendants in noise-induced
hearing loss limitation trials where attributability is disputed by the Claimant.
Issues relating to limitation in noise-induced hearing loss trials can
be summarised as follows.
The Claimant’s cause of action, pursuant to section 11 of the
Limitation Act 1980 (“the Act”), accrues at the time of his noise exposure
(when the noise-induced hearing loss is caused): which is usually far more than
three years before the date of issue of the claim.
The Claimant is, therefore, usually dependent on meeting his burden of
proof in showing a date of knowledge, pursuant to section 14 of the Act, which
is later than the date on which the cause of action accrued.
The Claimant’s date of knowledge is the date on which he has knowledge
both of an injury which is significant, pursuant to section 14(1)(a) of the
Act, and of that injury being attributable, in whole or in part, to the breach
alleged, pursuant to section 14(1)(b) of the Act.
An “objective” test is applied: and, further, section 14(3) of the Act
“14 (3) For the purposes of
this section a person’s knowledge includes
knowledge which he might reasonably have been expected to acquire —
from objective facts observable or
ascertainable by him, or
from the facts ascertainable by him
with the help of medical or other appropriate expert advice which it was
reasonable for him to seek.”
The judgment of Dame Janet Smith in the Court of Appeal in Johnson was, in essence, that a
reasonable man realising he had significant hearing loss would consult his GP
seeking an explanation as to its cause, and would then probably be asked
questions as to its cause which would probably identify at least potential
attributability to noise exposure at work:
“28. Would a
reasonable man in his situation and with his knowledge be curious to know the
cause of his deafness? … I come … to the conclusion that a reasonable man in
the 21st century would be curious about the onset of deafness at the relatively
early age of 61 and would wish to find out what was causing it. In the circumstances
I think that a reasonable man would have consulted his GP about his deafness …
29. … It follows that I think it probable that if the GP had
been consulted as to the cause of the deafness, he would have asked about the
appellant’s employment history and the possibility of noise deafness would have
come to light.”
Dame Janet Smith goes on to make the comment, often relied upon by
Claimants, that, in making the decision to consult:
“31. … I would be
prepared to allow some ‘thinking time’ between the time when he realised that
he had a significant condition and the date on which he ought reasonably to
have taken expert advice. The time to be allowed must depend on the nature of
the condition but, with a condition such as deafness which presents in an insidious
way, I would be prepared to allow about a year for consideration.”
The facts of the case of Smith
In the recent trial of the preliminary issue of limitation in the
noise-induced hearing loss claim in the case of Smith v Brentford Nylon Limited, Shegl Realisations Limited, and Dunlop
Rubber Company Limited before HHJ Gargan in the Newcastle County Court on
20.9.17, the Claimant (now aged 68) asserted, in essence, that he first became
aware of hearing loss only shortly before receiving, in around August 2014, a
leaflet which invited him to make a telephone call if he thought he was
suffering from hearing loss, and if he had worked in noisy industries: and that
it was only on receipt of this leaflet that he realised that his hearing loss
could be potentially attributable to noisy work, which he had left more than 30
HHJ Gargan accepted the Defendants’ submissions that the case of Johnson was applicable on its facts to
this case (both involving claimants in their 60s who had left noisy employment
decades ago and did not initially realise any connection between significant
hearing loss and noise exposure at work): and so found that, irrespective of
the actual delay between the Claimant first suffering significant hearing loss
and the himself Claimant first making the “connection” that this could be
attributable to his past work, the Claimant’s date of knowledge, by an
objective test, was at most one year after the date by which significant
hearing loss/injury was present.
HHJ Gargen then went on to find as a matter of fact that the Claimant
was probably suffering a significant injury, of hearing loss, at a date well
before the date asserted by the Claimant as the date when he first noticed
hearing loss; and so found that the Claimant was probably suffering a
significant injury, of hearing loss, more than a year before the Claimant first
received the leaflet which led him to make a connection between hearing loss
and noisy past employment; and so found the claim to be statute-barred.
For most noise-induced hearing loss cases, which involve Claimants who
have relatively recently been in noisy employment and so who have been provided
with some hearing protection and training, the issue of attributability is not
relevant: as it is very difficult indeed for such a Claimant to assert credibly
that, on the information available to him, it was not objectively reasonable
for him to realise that significant hearing loss was potentially attributable
to noisy employment, from the first onset of the hearing loss.
For that, smaller, category of noise-induced hearing loss cases in
which the Claimant left noisy employment decades ago, and before the provision
of hearing protection and information, it can often be credibly asserted that
it was objectively reasonable for the Claimant to take a long time between the
date of first onset of significant symptoms of hearing loss and the date of the
Claimant realising that the hearing loss could potentially be attributable to
noise exposure at work (for example on receipt of a claims referrer’s leaflet).
Even within this category of claims, however, if the reasoning in Johnson is applied, such an assertion in
effect only justifies a maximum of around a 12-month “extension” in the date of
knowledge: from the date of the onset of significant hearing loss and the date
by which, had a GP been consulted, this should reasonably have been realised to
be attributable to noise exposure at work.
A Claimant who brings a claim on receiving a leaflet asking whether he
has hearing loss will have to concede being aware that he had hearing loss for
at least some time before receiving the leaflet: as otherwise he would not have
thought that the leaflet was relevant to him.
If the reasoning in Johnson is
then applied, any argument made that the Claimant that he did not have the
knowledge to reasonably link hearing loss with past noise exposure at work will
at best leave a only short period, of around one year, from the point where a
significant injury was present, to the point at which it was reasonable to
attribute it to past noise exposure, had the reasonable step of seeing a GP
A Claimant with only relatively slight total hearing loss, and/or a
Claimant significantly older than the Claimant in Johnson (who was 61) at the date of first onset of the alleged
“deafness”, can argue that the case of Johnson
is not applicable on its facts: but if the Judge does apply Johnson then this will in effect limit
to only around one year the period, for the purposes of a Claimant’s date of
knowledge, between the date of first onset of significant symptoms and the date
at which these symptoms are objectively attributable to noisy employment.
Regrettably, in my experience, Claimants’ solicitors all too frequently
delay, sometimes for years, the issue of proceedings, for example in the hope
of achieving settlement: even under circumstances in which the issue of
limitation is arguable if the claim is brought within months of the Claimant
first receiving a claims referrer’s leaflet, but where the issue of limitation
is rendered hopeless by any very substantial delay in issuing proceedings.