Know Your Limitation

Claims farmers are the compensation equivalent of their intensive agriculture namesakes. And with an eye to large yields they are digging up a raft of historic deafness and HAVS claims. Deborah Edwards, associate solicitor in Weightmans’ Dedicated Disease Unit, assesses the risk to UK employers and the use of “constructive knowledge” as workable defence against claims.

The emergence of claims farmers in recent years and their ‘trawler’ approach to business has led to a noticeable rise in historic deafness and HAVS claims.

The desire of these claims management companies (CMCs) to sell their ‘haul’ and the eagerness of some lawyers to expand their personal injury base means that some very stale claims – way past their sell-by date – are now surfacing.

The Limitation Act 1980 essentially states that a claimant has three years to issue proceedings from the date when he first knew or should have suspected that he was suffering from a significant condition which may have been caused by his work.

Knowledge can be defined as either actual or implied (constructive). The latter is defined by Section 14 (3) of the Act as follows:

“…knowledge which a Claimant might reasonably have been expected to acquire

• from the facts observable or ascertainable by him; or
• from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

but a person shall not be fixed with knowledge under this subsection of a fact which is ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

Constructive advice

It is the application of the claimant’s “constructive knowledge” in determining limitation which can be a powerful tool for defendants in combating the rise in these claims being pushed by hungry claims farmers. A fact highlighted by two major cases.

The Court of Appeal’s decisions in both Adams v Bracknell Forest DC 2004 & McCoubrey v MOD 2007 confirm that in determining when the claimant should have gained such knowledge, an objective approach must be taken.

The objective approach applies to both the appreciation that the injury is “significant” and to the question as to its cause. Issues concerning the claimant’s personal characteristics and personality should be ignored and the emphasis should be on what the reasonable person would have thought and done.

However, it is important to realise that even if the court rules that the claimant has started his case out of time, under Section 33 of the Limitation Act 1980 the court can still exercise discretion to dis-apply the three-year period and allow the claim to proceed if it would be just to do so.

Factors taken into account include the cogency of the evidence following the delay, the length and the reasons for the delay, the extent to which the claimant acted promptly once he knew that he had an action in damages, the steps if any taken by the claimant to obtain advice, the conduct of the defendant after the cause of action arose and the extent to which requests for information or inspection were dealt with.

In making this decision the judge undertakes a balancing exercise, weighing the prejudice to the claimant in being unable to recover any damages against the defendant’s prejudice in meeting a stale claim, and losing their cast iron limitation defence.

On the case

Two recent mining and quarrying cases run by Weightmans’ Leicester office illustrate how the objective approach applies in determining when the claimant should have first linked his symptoms to his work.

In Dwayne Dalley v Carnon Contacting Ltd the claimant sought to claim compensation for noise induced hearing loss (NIHL) and tinnitus allegedly due to his time in a Cornish tin mine from 1967–1969.

Proceedings did not commence until 2006, some 40 years after the alleged exposure. The claimant gave an account of very extreme noise exposure – including on at least two occasions having suffered from bleeding in the ears when exposed to noise from explosives.

He alleged that he had suffered both tinnitus and hearing loss since the early 70s, but that despite his vivid account of noise exposure, he had never attributed his hearing problems to that exposure until he underwent audiometry through the claims farmer in 2003.

There was nothing in his records to suggest that the claimant had obtained any medical advice prior to being approached by a claims farmer in 2003. However, the more the claimant sought to emphasise the noise, the less he was able to convince the court that he did not or ought not to have linked his tinnitus/hearing loss to that exposure.

The court followed the objective tests set out in the Adams & McCoubrey cases. Given that the claimant himself admitted to noticing a hearing loss for around 30 years, and coupled with his lurid description of the severity of noise exposure, the court found it inconceivable that a reasonable person in the claimant’s position would not have made the connection with his work sooner than the claims farmer’s visit in 2003. It dismissed the claim.

The second case was due to proceed to trial in January this year but was discontinued by the claimant following heavy opposition by Weightmans on the limitation issue.

In that case the claimant had been a stone mason all his life and was seeking compensation for HAVS. He had worked for a number of different employers over the years, including the defendant at its North East quarry from 1977 to 1986.

It was the claimant’s case that he had experienced symptoms of HAVS since the late 70s or early 80s but that he had never connected the symptoms to his extensive use of vibratory tools until he underwent a medical examination organised by a claims farmer in 2002.

The claim was opposed on limitation grounds on the basis that the claimant ought to have realised the possible connection between his work and his symptoms much sooner.

And that as the quarry had fallen into disuse many years ago, with no remaining records or traceable witnesses, it would be inequitable to allow the claim to proceed out of time.

The claimant withdrew from the action days before the court was to decide upon the limitation issue.

Know your limitation

These cases illustrate that limitation is worth considering in any “common” disease claim where exposure has ceased more than five years ago.

It poses particular problems for the HAVS and deafness claimants who will have known of their exposure to noise/vibration such that they ought to have linked their symptoms to their work upon the symptoms emerging.

The links between noise exposure & deafness/vibration exposure & HAVS have been within the public domain for some considerable time.

There has been a tendency to admit breach of duty in cases against defunct companies where no information on exposure remains. This should be resisted until limitation has been fully explored. An admission could serve to quash any arguments of prejudice raised by the defendant if the claimant should seek to rely upon the court’s Section 33 discretion to allow an out of time claim to succeed.

Indeed, it is precisely the lack of evidence which enhances the defendant’s arguments in this respect.

Interestingly, the fact that thousands of claims had been settled by the DTI in a recent mining case – Jones & Donnison v DTI, 2007 – was not a factor the court was persuaded to consider in Section 33 of the Limitation Act application: “…a defendant can draw attention to prejudice which arises...not simply 10 or 15 years, but 30 years or more. It is a prejudice not simply between the parties but also to the administration of justice”.

Wherever possible the defendant lawyer should seek to have the limitation issue tried as a preliminary matter with the claimant giving evidence in the witness box.

Some claimants are keen to emphasise the serious level of the particular exposure, presumably in the hope that this will encourage the support of the judge. Similarly, they may be inclined to stress the severity of the injury. It is just those very factors which may encourage the objective element of the constructive approach to determine an earlier date of knowledge.

Deborah Edwards 0116 253 9747