Another limitation case fails on balance of prejudice test

The Court of Appeal, never generous on limitation issues, has considered a case where the claimant injured his back in 1998. He issued proceedings five years later after having an operation for a prolapsed disc, and also hearing from a previous manager that he should have been sent on a training course and been provided with special equipment when doing the job that caused the injury.

The Judge found in the claimant’s favour, holding that he had acted reasonably. However the Court of Appeal said that the Judge was wrong in the way he exercised his discretion under Section 33 of the Limitation Act. The Judge’s decision was based on the fact that the claimant had been devoted to his job and had acted reasonably. This was not the statutory test that had to be applied. The issue of proportionality was referred to but was not evaluated, and no reference was made to the balance of prejudice. There was no evidence of what an employer should have done in 1998, and no evidence of any training or special equipment would have avoided the accident.  Applying the balance of prejudice test, and taking into account the modest nature of the claim, it would be wrong to exercise discretion to allow the claim to proceed.

McGhie  -v- British Telecommunications Plc. Court of Appeal 18 January 2005

Another nasty limitation case

This was not a personal injury case but a property case. It dealt with actual and constructive knowledge in relation to limitation. The Court of Appeal held that, in considering whether the knowledge required to bring a negligence action was to be imputed to someone under the Limitation Act Section 14, the court had to have regard to the position of the actual claimant and not some wholly hypothetical claimant, and therefore could not ignore the claimant’s belief that she had a claim even if that belief was unfounded in law.

Gravgaard -v- Aldridge & Brownlee. Court of Appeal 9 December 2004.