We recently reported the good news of the overturning by the House of Lords of the of the Walkley decision in the case of Horton -v- Sadler. Keith Patten has written an excellent article on this, which will appear in the September edition of the Journal of Personal Injury Law.

There have been two recent cases on discretion. Both, coincidentally, involved a delay of seven years.

In McHugh -v- Gray the claimant had been present at the Hillsborough Football ground in April 1989 when a number of spectators died or suffered serious injury as a result of crushing. A claimant settled his case for a small sum on the basis of a medical report from a consultant psychiatrist. His condition however did not resolve and he then had continuing depression and other problems.

Court proceedings were commenced against the psychiatrist alleging negligent diagnosis and prognosis. Limitation was tried as a preliminary issue. The Judge held that the claimant had constructive knowledge of his claim in 1992 so that limitation expired in 1995. There was a seven-year delay in issuing proceedings. The Judge held that this delay was not minor; the defendant was faced with a stale claim and prejudice would be caused.

The Judge had also properly considered the strength of the claim and given sufficient weight to it size. The claim was dismissed by Mr Justice Beatson in the High Court on 27 July 2006.

However, in one of our cases of Chambers -v- Atlas Structures Limited a seven-year delay ended with a very different result. The claimant who had been exposed to excessive noise had an audio test and saw a printed slip in July 1992 which indicated “right ear cat 1” and “left ear cat 2”. He recalled being told that in some respects his hearing was down but did not appreciate in 1992 that this was due to working in noise.

He then had a test in 1996 which had the results “L cat 3” and “R cat 2”. He was told his hearing was down and if anything had got worse.

In addition, several employees at the same factory had made successful claims for hearing loss in around 1995.

The Judge was satisfied that, by the date of the 1996 test, the results were sufficient for any reasonable person to have appreciated that he ought to seek medical advice. He did not because he did not regard it as being sufficiently serious to do so. However the claimant was a safety representative and the Judge did not accept that he had not appreciated that some of his colleagues were making claims and had succeeded. He therefore found that the date of knowledge was 1996.

There was then a delay of seven years before proceedings were issued. The Judge said that he was satisfied that the claimant did not regard his reduction in hearing as sufficiently serious to consider making a claim until seen by a consultant in 2003. The claimant was not simply waiting for the injury to become more serious and worth more in terms of compensation.

He did not accept there was evidence of prejudice to the defendants. The claimant had acted promptly to seek legal and expert advice following the information given in 2003 and the Judge therefore disallowed Section 11 of the Act and allowed the case to proceed.

Chambers -v- Atlas Structures Limited. Scarborough County Court 31 July 2006.