Robust approach to limitation continues

White v Eon, Omega Red Group and Sentinel Lightning Protection and Earthing (Court of Appeal - 26 November 2008)

The claimant, employed by the third defendant between 1994 and 1996, claimed damages for vibration white finger and carpal tunnel syndrome. The claimant's symptoms commenced in the 1980s and deteriorated until shortly after he left the third defendant's employment.

The claimant had mentioned his symptoms to his GP on a couple of occasions when attending for unrelated complaints, but had not specifically complained about his hands.

At first instance it was held that the claimant did not mention his symptoms in sufficient detail as would be expected to lead the doctor to investigate any particular condition. By 1996 at the latest, when he left the third defendant's employment he ought to have clearly sought medical advice about his symptoms. Thus the claimant was fixed with constructive knowledge more than three years prior to issuing proceedings.

The claimant's appeal was dismissed and the Court of Appeal held that the trial judge had asked himself the correct question. It had been for the judge to decide what was or was not reasonable for the claimant to have done in the circumstances. His finding that it would have been reasonable for the claimant to have sought medical advice was a finding of fact open to him on the evidence.

Comment

This case is a further demonstration of the objective test directed by the House of Lords in A v Hoare & Others (2008) and further evidence of the courts' robust approach to limitation. The claimant's symptoms were significant and the reasonable man would, objectively, have sought medical advice specifically about the symptoms to his hands and, had he done so, a diagnosis would have ensued. - Michael Cairns, BLM Manchester.

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