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McGhie v British Telecommunications Plc, Court of Appeal, 18 January 2005

28 January 2005
The issues

Limitation – Proportionality – Section 33 Limitation Act 1980

The facts

The Claimant injured his back at work whilst working for the Defendant in 1988. Five years later he issued proceedings alleging negligence and breach of statutory duty. He issued the proceedings after having an operation for a prolapsed disc which made him considerably better and on hearing from a previous Manager, that he should have been sent on a training course and provided with special equipment when he was doing the job that caused his injury. The medical evidence indicated that the Claimant had a pre-existing history of back problems. The Defendant pleaded limitation and the matter was heard as a preliminary issue. The Judge exercised his discretion under Section 33 in the Claimant’s interest. The Judge had not applied the statutory test under Section 33 but had rather based his decision on the fact that the Claimant had been devoted to his job and had acted reasonably.

The Judge had referred to proportionality but had not evaluated the issue and no reference had been made to the balance of prejudice. The Claimant’s pleaded case on liability was based on hearsay and there was no evidence of what a prudent employer would have done in 1988 or any evidence of any training or special equipment would have avoided the accident. Taking into account both the modest nature of the claim and the balance of prejudice test, it would be wrong to exercise the discretion to allow the claim to proceed out of time.

Appeal allowed.

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