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Two ticking clocks and S.33 Limitation Act

7 July 2014

The recent Court of Appeal decision of Malone v Relyon Heating Engineering Ltd has given renewed life to limitation defences, particularly in latent disease claims.

The court allowed the defendant’s appeal against the first instance decision extending the limitation period under s.33 Limitation Act. The claimant in Malone accepted that he had constructive knowledge of noise-induced hearing loss by 2001. However exposure continued until 2004 when he left the defendant’s employment.

The court held that there can be more than one ‘limitation clock’ which can start ticking from the date of constructive knowledge rather than solely when the injury is ‘completed’. In Malone, the court considered that the claimant’s hearing loss was divisible. Clock 1 started ticking when constructive knowledge was established whereas clock 2 ran from when exposure ceased.

It also emphasised proportionality and refused to disapply the time bar on the basis that the apportionment for the exposure delay from Clock 2 would be exceedingly small.

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