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Burgin v Sheffield City Council & SFE Utility Services Plc, Court of Appeal, 14 April 2005

12 May 2005
The issues

Limitation – VWF

The facts

The Claimant claimed against two former employers. He was employed by Sheffield between 1964 and 1992 and SFE Utilities between 1994 and 2001. He alleged that he suffered Vibration White Finger (VWF) or from Hand/Arm Vibration Syndrome (HAVS).

A Claim Form was issued on 20th Marcy 2003. The First Defendant alleged that the claim was time barred. The matter came before the Judge on 4th November 2004 as a preliminary issue. The Judge found that the Claimant had the relevant knowledge by 1992 or at the latest by 1995.

The Judge went on to consider Section 33 (3) of the Limitation Act 1980 and this applied the provisions of Section 11 thus allowing the action to proceed. The First Defendant appealed.

The decision

The Judge’s approach could not be faulted. He had correctly directed himself by reference to the section and then held that it was equitable to disapply Section 11. He plainly thought that the critical factor was the effect of the delay on the Council’s ability to defend. He had correctly placed weight on the failure of the Council to adduce evidence of prejudice. Whilst the ultimate burden was on the Claimant to show that it would equitable to disapply the statue, the evidential burden showing that the evidence adduced or likely to be adduced by the Defendant was or was likely to be less cogent because of the delay, was on the Defendant.

The Defendant had proffered two aspects of prejudice by Counsel’s skeleton – the first relating to difficulties arising in respect of apportionment between the Defendants and the second relating to the death of the Claimant’s supervisor, Mr Tom Slater.

In respect of the former, there was no difficulty before the Court that was greater than it would have been in terms of dealing with apportionment.

Secondly, the Defendant has been able to take witness statements from five other employees including the Claimant’s senior boss. It did not appear to the Court that the evidence was that the Council would be faced with any significant prejudice by the absence of Mr Slater. The question before the Court of Appeal was not whether the Court would have reached the same conclusions as the Judge but whether the Judge had exceeded the generous ambit within which reasonable disagreement was possible. The Judge did not.

Appeal dismissed.

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