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Ian Kew v (1) Bettamix Limited (2) Tarmac Roadstone Limited (3) Situsec Contractors Limited (4) Tarmac Contractors Limited (5) FM Conway

1 February 2007
The issues

Costs – date of knowledge – delay; discretion – hand arm vibration syndrome – limitation period – application of primary limitation period – Section 11 Limitation Act 1980 – Section 33 Limitation Act 1980.

The facts

The Appellant’s employers (B) appealed against the decision to disapply the primary limitation period and allow the action pursued by the respondent (K) to proceed. K had claimed against B in respect of his exposure to vibrating equipment during his employment with them. In the early 1990s K had experienced numbness in his fingers but attributed this to his age. By the late 1990s K appreciated that his age might not have been the only cause. Following a routine occupational health care assessment in March 2000, K’s doctor informed him that his symptoms might be attributable to exposure to a vibration at work and in July 2000 it was confirmed that K was suffering from hand arm vibration syndrome. The doctor recommended an annual review and intimated that recommendation to B. K was not subsequently called for review. K issued proceedings in April 2004. At a preliminary issues hearing, the Judge identified July 2000 as being the relevant date of knowledge for the purposes of the Limitation Act 1980 Section 11 and found that the primary limitation period had expired but exercised their discretion to disapply pursuant to Section 33 of the Act. The Judge also required B to pay all the costs of the preliminary issues notwithstanding their success and primary limitation. It was held that an injured person had to have sufficient knowledge to make it reasonable for him to acquire further knowledge of the link between his injury and prior working conditions Haward v Fawcett (a Firm) 2006. In the early 1990s, there was no basis for suggesting that K had considered or should have considered that his injury was not the product of some ageing process. Further, in the late 1990s there is no evidence that K had any idea of the link between the injury he was suffering and his work conditions. His concession that he knew at the time that his difficulties were not just caused by his age provides no evidence as to what the cause might have been. K did not have the requisite knowledge at that time. However constructive knowledge dated from 29th March 2000, namely the date upon which K’s doctor had informed him that he had some symptoms which might be attributable to exposure to vibration at work. Although K was not told expressly at the time of the causative link, the doctors conclusions demonstrated that there was a real possibility that his working conditions had caused the symptoms, and required investigation. The discretion exercised by the judge in relation to Section 33 had been open to them on the facts of the case. The Judge was entitled to find that he would not be unduly prejudiced by the delay if the action were to proceed, that B’s conduct in failing to recall K for medical review was a relevant factor and that K’s delay had not been dilatory. Further, it was open to the Court to disapply the limitation period if it was equitable to do so, by taking account of the financial value of the claim to the Claimant and the potential cost to the Defendant’s organisation.

It was decided there was no reason why B should have to bear the costs of the hearing of preliminary issues. The hearing largely concerned the date of knowledge issue and the identity of the employers, both of which K lost. K’s argument based on section 11 of the 1980 Act could not succeed and the Judge had failed to appropriate balance that factor in the scale.

Comments

On the facts, time had started to run for limitation purposes when the employee’s doctor concluded that there was a real possibility that his working conditions had caused his hand arm vibration syndrome, and that it would have put the reasonable amount on notice to investigate the link further. However, it had been open to the Judge on the evidence to disapply the primary limitation period.

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