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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 28 JUL 2014

Malone v Reylon Heating Engineering Ltd [2014] EWCA Civ 904

Malone v Reylon Heating Engineering Ltd [2014] EWCA Civ 904
Summary by Joseph Carr, Anthony Gold Solicitors

Court of Appeal
Arden, Jackson, Fulford LJJ
2 July 2014

Summary
The Judge at first instance had erred in identifying the correct starting point for limitation in a claim where the Claimant had developed hearing problems during the course of his employment.

Detail
The claimant was employed by the defendant from 1977 to 2004 where he was exposed to excessive noise for up to 8 hours a day. The claimant visited his GP in October 2000 in relation to hearing difficulties and in January 2001 he was seen by an ENT surgeon who provided him with a hearing aid. His employment ended in 2004. The defendant company went into liquidation on 29 February 2008 and the insurers were notified of the claim on 13 March 2009. Proceedings were issued January 2011.

It was accepted by the claimant that date of knowledge was end of January 2001. However, the trial Judge held that the claimant had suffered damage throughout the employment until 2004 and therefore found that limitation for the entire claim expired in 2007. She then considered whether it would be equitable to allow the claim to proceed, having regard to the expiry of the primary limitation period. The Judge concluded that prejudice to the defendant ceased in 2009 when notification was provided to the insurers and found that this delay from 2007 to 2009 had not materially compromised the defendant’s ability to defend the claim. She therefore exercised her discretion under s33 of the Limitation Act 1980 and disapplied limitation in favour of the claimant against which the defendant appealed.

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The Court of Appeal held that there were two relevant periods regarding limitation: (1) the period for the pre-2001 damage (2001 being the Claimant’s date of knowledge) and (2) the period for the post-2001 damage. There was no proper basis for the judge to have suspended limitation for the earlier period given that apportionment of damage was possible and appropriate in this case.

The Court found that the prejudice to the defendant from 2004 to 2009 was considerable for the pre-2001 damage as by 2009 the company had gone into liquidation. The Court unhesitatingly concluded that it was not equitable to allow the action as regards the pre-2001 injury.

As regards the post 2001 injury, the Court held that prejudice to the defendant must be assessed by reference to the delay by the claimant in the context of the entire case. The claimant’s delays had made it hard to assess the extent of any injury between 2001 and 2004, although it was clear that the value for the period 2001 to 2004 would be exceedingly small. The Court refused to allow this part of the action either.

Comment
This is a reminder to claimants that it is crucial to identify the appropriate periods of limitation. In cases where there has been continuing injury, the claimant cannot rely on continuing injury after the date of knowledge to act as a safety net for the limitation of the entire claim. Furthermore, the date of knowledge will be relevant for considerations of limitation for the entire claim.
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