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Johnson v Ministry of Defence & Anor, Court of Appeal, 21 November 2012

7 December 2012
The issues

Adams v Bracknell Forest BC – limitation – date of knowledge – significant injury

The facts

The claimant brought a claim for personal injuries against two former employers alleging that in the 1960’s and 1970’s he had been exposed to excessive noise and had suffered consequential deafness. The claim was dismissed on limitation grounds on the basis that for the purposes of Sections 11 and 14 of the Limitation Act 1980 the claimant had had knowledge of his cause of action by 2001. The judge declined to exercise his discretion under Section 33.

The claimant had worked at Chatham dockyard from 965 – 1970 and 1974 to 1979. From 1969 to 1970 he worked for Hobourn Eton Ltd. In both employments he alleged he was exposed to loud noise. He said he had become aware of a problem with his hearing by about 2001 when he was having difficulty in hearing conversations against background noise. When his hearing deteriorated at that time he did not associate it with his exposure to noise in the 1960’s and 1970’s. He did not consult his doctor until 2006, by which time his hearing had worsened. His doctor advised him that any hearing difficulty was probably due to his age, which was then 66. In 2007 he was approached by the representative of a claims management company on the car park of his local supermarket and was told that he might have a claim. He was sent to a consultant ENT surgeon. His report showed that the claimant suffered from severe deafness. It also expressed the view that noise was a major cause of the deafness. The claimant’s case was that he did not know that he had a significant injury or that his injury was attributable to exposure to noise until he saw the consultant ENT surgeon in 2009.

The judge found that by 2001 the claimant had actual knowledge that he had a significant injury, for the purposes of Section 14(2) of the Act. The judge then dealt with Section 14(1)(b) as to whether the claimant knew, for the purposes of his date of knowledge, that the injury was attributable in whole or in part to someone else’s fault (“That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty”).

The judge found that the claimant was aware that he had worked at time in noisy environments and was further aware that this could cause some hearing difficulties, despite his view at the time that the onset of old age and occasional build-ups of wax were perhaps causative. That being the case, the judge took the view there was no need for him to make a finding as to constructive knowledge under Section 14(3) of the Act.

The claimant appealed.

The decision

The test was what a person with the essential characteristics of the claimant, such as age and mental capacity, would do if acting reasonably

The judge had erred in moving straight from his finding of primary fact to the conclusion that by 2001 and without the benefit of any expert advice, the claimant had actual knowledge that the significant deafness might be attributable to exposure to noise at work. Knowledge that his deafness was significantly coupled with knowledge that he had in the past been exposed to loud noise, which he knew was capable of causing deafness, did not, of itself, amount to knowledge that his deafness might be attributable to noise. The judge had accepted as honest, the claimant’s evidence that it had not occurred to him that his deafness might be associated with noise exposure. Therefore he could not be said to have knowledge of attributability.

The real issue in this case was constructive knowledge. The judge should have considered whether the claimant had knowledge within the meaning of Section 14(3) of the Act, but did not. (“For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire – a) from facts observable or ascertainable by him, or b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek…”)

The correct approach to Section 14(3) was to be found in Lord Hoffmann’s speech in Adams v Bracknell Forest Borough Council. In that case, Lord Hoffmann had stressed that the test was an objective one, to be measured against the standard of the reasonable man. However, he said that the degree of objectivity would vary according to the assumptions made about the person whose conduct was in question. Although Lord Hoffmann had gone on to say that Section 14(3) had required the court to assume that a person who was aware that he had suffered a personal injury serious enough to be something about which he would go and see a solicitor about a claim, would also be sufficiently curious about the cause of his injury to seek whatever expert advice was appropriate. The Court of Appeal took the view that Lord Hoffmann was not therefore saying that that assumption applied in every case. The test was what a person with the essential characteristics of the claimant, such as age and mental capacity, would do if acting reasonably. What Lord Hoffmann must have meant was that there would be an assumption that a person who had suffered a significant injury would be sufficiently curious to seek advice, unless there were reasons why a reasonable person in his position would not have done. Such a reason might include the fact that the condition, although in law significant, was something which the claimant had become used to, so that a reasonable person would not be expected to be curious about its cause. The degree of curiosity to be expected of the reasonable person would depend on the seriousness of the condition and the way in which it manifested itself. However, the House of Lords had intended to impose a fairly demanding test of claimants. There were good policy reasons for this objective and more demanding standard. For a claimant to be able to bring an action as a right, possibly decades after the relevant events, there would be real unfairness to defendants. In this case, applying that test, the Court of Appeal took the view, although not without hesitation, 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 these circumstances, a reasonable man would have consulted his GP about his deafness. If the GP had been asked specifically about his deafness in 2001, he would have thought about the possibility of noise deafness and would have asked the claimant about his working history. The possibility of noise deafness would have come to light.

By the end of 2002 the claimant would be deemed to have had knowledge that his deafness might be attributable to exposure to noise while in the employment of the defendants. The primary limitation period therefore expired by the end of 2005 and the claim was statute barred.

Since there was no appeal against the exercise of the discretion, appeal dismissed.

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