The claimant was employed as a track man, a leading track man and a track charge man on the railways. He operated a number of hand-held vibratory tools.
He first noticed symptoms in the mid 1990s which he regarded as a nuisance. The symptoms gradually progressed. He was eventually referred by his employers for a formal occupational health assessment in March 2005. This resulted in a diagnosis of hand arm vibration syndrome. After that his vibration exposure effectively ceased.
Previous solicitors were instructed in May 2006. Proceedings were issued in November 2007. We took over the matter in May 2008 and limitation was ordered to be tried as a preliminary issue.
There is a 3 year time limit to start your claim from when you should reasonably conclude you have an injury caused by work.
The claimant argued that, even if a reasonable person might have regarded the symptoms as becoming significant, he did not believe they were work related and in fact attributed them to cold weather and later, to his age. The defendant argued that he had acquired actual knowledge at the time of onset of the symptoms, in the mid 1990s, that he ought to have sought medical evidence and had he done so he would have acquired the requisite knowledge.
The Judge applied the objective test of what a reasonable person would have done, found that the claimant ought to have made some enquiries with his GP. As his symptoms were worsening up until 2002 he found that the claimant ought to have sought advice at that stage and acquired knowledge by January 2003. The case was therefore out of time.
However, the Judge then considered his right to exercise discretion and in particular the effect of the delay on the strength of the evidence and how it prejudiced the defendants. He was not persuaded by the defendant’s reference to some witnesses not having responded or been traced, finding that it did not exclude the possibility of their still being traced.
He referred to the lack of adequate health surveillance, and said that, had health surveillance been undertaken between 1999 and 2005, then the claimant’s problems might have come to light earlier. He was not persuaded that a period of delay of some 22 months materially affected the evidence. The Judge therefore exercised his discretion to hear the claim out of time in the claimant’s favour.
Sheffield County Court, February 12, 2009.