There has been a series of recent cases dealing with limitation issues, some of them affecting disease cases.
In Kew -v- Bettamix Limited and Others (2006) EWCA Civ 1535 the issue was when the claimant ought to have taken steps to investigate pursuing a claim against his employers.
In the early 1990s, the claimant had experienced numbness in his fingers which he thought was caused by his age. By the late 1990’s he appreciated that his age might not have been the only cause. Following a routine occupational health care assessment in March 2000, his doctor informed him that his symptoms might be attributable to exposure to vibration at work, and in July 2000 it was confirmed that he was suffering from hand / arm vibration syndrome. The doctor told the claimant his recommendation was an annual review. The claimant was not subsequently called for a review. He issued proceedings in April 2004.
At a preliminary hearing on limitation, the Judge held that the primary limitation period had expired but exercised her discretion to disapply it pursuant to Section 33 of the Limitation Act. The employers appealed, both in respect of the limitation issue and in respect of costs, which were awarded against the defendants despite the fact that they had succeeded on the issue of primary limitation.
The Court of Appeal held that the claimant had constructive knowledge from 29 March 2000; although the claimant was not told expressly at the time of the causative link, the doctor’s conclusions showed there was a real possibility that his working conditions had caused the symptoms and for a reasonable man therefore this required investigation.
With regard to discretion, the Judge had been entitled to find that the defendants would not have been unduly prejudiced by the delay if the action were to proceed, that the defendant’s conduct in failing to recall the claimant for a medical review was a relevant factor and that the claimant’s delay had not been long. It was also equitable to disapply the limitation period by taking account of the financial value of the claim to the claimant and the potential cost to the defendant’s organisation.
With regard to the costs issue, there was no reason why the defendant should have to bear the cost of the hearing of the preliminary issues as the hearing largely concerned the date of knowledge issue and the identity of the employers, both of which the claimant lost.
In another vibration case, Norton -v- Corus UK Limited the Court of Appeal on 13 November 2006 considered limitation in respect of a steel worker. He had been employed at various steel works between 1969 and 1998 and his work involved using vibrating tools. From about 1992 he had suffered symptoms of hand / arm vibration syndrome but did not do anything about it until a relative made a successful claim against another employer. In 2003 he then instructed solicitors and sought a medical diagnosis. Proceedings were issued. The Judge held that actual knowledge had occurred in 2003 but the claimant had constructive knowledge that he was suffering from hand / arm vibration syndrome in 1997 and probably in 1992 or 1993.
The claimant appealed on the grounds that he could not reasonably have been expected to be aware that he had suffered a significant injury and could not reasonably have been expected to know the injury was attributable to the use of vibrating tools; and that even if medical advice had been sought earlier it was for the defendants to establish that a diagnosis of hand / arm vibration syndrome would have been made.
However, the Court of Appeal dismissed his appeal and said that if the injury was significant in 2003 then it was significant in 1992 and the conversation with his relatives did not alter that. The Judge’s decision in relation to constructive knowledge was correct. The Judge was entitled to conclude that the disease was well known within the industry in the 1990s and a doctor would not have dismissed a claimant’s symptoms. It does not appear that in this case the issue of discretion was argued.
How serious does an injury have to be to be “significant”? In Catholic Care (Diocese of Leeds) and the Home Office -v- Young (2006) EWCA Civ 1534 the Court of Appeal dealt with the question of whether the test of deciding whether an injury is sufficiently serious is an objective one.
The claimant said that, as a teenager, he had been subjected to physical and sexual assaults by a member of staff at a school run by the first defendants, and to sadistic sexual abuse by a member of staff while resident at a detention centre operated by the second defendants. During the three years following his release, the claimant suffered from post traumatic stress disorder but did not seek medical help and succeeded in suppressing his memories.
He went on to lead a successful and happy life until a chance meeting with one of his alleged abusers many years later triggered the return of significant psychiatric problems. Four years later he was contacted by the police to assist with their investigation into alleged abuse at the children’s home and detention centre. Following a criminal trial the claimant began civil proceedings. The Judge held that the claimant first had knowledge for the purpose of the Limitation Act less than three years before he issued proceedings, but the Court of Appeal held that the test for reasonableness was objective.
The claimant had been aware, during the three years following his release from the detention centre, that he had suffered and was suffering a serious injury as a result of the assaults. The claimant was aware that he was suffering from a serious psychiatric injury a short time after the chance encounter with his alleged abuser. A reasonable claimant in that position would have turned his mind to litigation and applying an objective test. The claimant had the requisite knowledge under Section 11 more than three years before the start of proceedings.
And finally on limitation, an MIB case: In Richardson -v- Watson and Another (Court of Appeal 13 December 2006, Times Law Report), a claimant who had brought a personal injury action against an uninsured driver but had failed to give the necessary timely notice to the MIB in order for it to meet any liability that was established, could discontinue the action and commence a second action so that such notice could be given, even though the second action was commenced outside the three-year limitation period.
Where a claimant had not given a timely notice to the MIB, and the MIB was not prepared to overlook that, the court could see no objection in principle to the claimant discontinuing proceedings and commencing a fresh action in which a timely notice was given to the MIB. Such conduct would normally remove any prejudice the MIB might otherwise have as a result of late notice.