Zenith Personal Injury Current Awareness

​Johnson v MoD and date of knowledge in noise-induced hearing loss limitation trials

13 October 2017

Mark Henley

The decision of the Court of Appeal in Johnson v Ministry of Defence [2013] P.I.Q.R. P7, [2012] 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.

Legal summary

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 states that:

“14 (3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire —

(a) from objective facts observable or ascertainable by him, or

(b)   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 years earlier.

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.

Commentary

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 been taken.

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.

Current Awareness

By the Personal Injury team