Hearing loss claimant appeals time-barring

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Field v British Coal Corporation (Court of Appeal - 31 July 2008)

In a claim for noise-induced hearing loss, the Court of Appeal allowed the claimant's appeal against the decision of Doncaster County Court that the action was time-barred under the Limitation Act 1980.

The claimant began employment at a colliery in 1982. He suffered for many years with temporary, minor hearing loss caused by ear infections and wax build-up. The claimant consulted his doctor about these problems in 1985 (aged 19) and on a number of occasions since then. His employer carried out periodic hearing tests. An audiogram in 1998 was accompanied by doctor's notes stating that no abnormality was detected. In 2003, the claimant noticed ringing in his ears and his wife began to complain that he had the television too loud. Later that year, he spoke to his union and was referred to an ear, nose and throat surgeon who advised him, in November 2003, that he had mild noise-induced hearing loss. He issued proceedings in August 2006. The claim was dismissed as time-barred, the judge finding that the claimant had knowledge of a significant injury in 1998. The claimant appealed.

The Court of Appeal allowed the appeal, holding that the claimant was not aware in 1998 that he had suffered an injury and that his knowledge of his condition was not such as would lead a reasonable man in his position to seek further medical advice. He did not know the injury was significant until 2003. Lord Justice Moore-Bick found it difficult to accept that the claimant could reasonably have been expected to seek further medical advice in March 1998 while he still had reason to ascribe his symptoms to recurring problems with wax and infections.

Comment

This case illustrates the practical application of the objective test to establish the claimant's date of knowledge as outlined by Lord Hoffman in A v Hoare (2008): (i) ask what the claimant knew about the injury; (ii) add any constructive knowledge (knowledge which he would reasonably have been expected to acquire); (iii) ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify bringing proceedings. The test does not ignore what the claimant actually knew - it asks what a reasonable person with that knowledge would have done. - Malcolm Keen, BLM London.

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