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Date of knowledge under s.14 Limitation Act 1980: Johnson v MoD & Hobourn Eaton [2012] EWCA Civ 1505

William Vandyck appeared for the successful Defendant / Respondent in Johnson v Ministry of Defence and Hobourn Eaton [2012] EWCA Civ 1505, concerning limitation in a noise induced hearing loss case.

Mr Johnson was exposed to excessive noise in various employments up to 1979. At times he had been told to wear ear defenders and accepted that he knew that loud noise could damage hearing.  However, when he became deaf in 2001 he did not associate it with his noisy employment; he put it down to ageing and occasional build up of wax. In 2006 he visited his doctor about something else and asked in passing if there was wax in his ears; his doctor told him not and that any difficulty with his hearing was probably due to his age which by then was 66. In 2007 he was approached by a claims management company, thereafter seeing an ENT expert and bringing proceedings. The issue arose as to his date of knowledge for the purposes of section 14 of the Limitation Act 1980, in particular when he knew or ought to have known his injury was attributable to the Defendants’ breach of duty. The Claimant contended that the Claimant did not have a date of knowledge until after 2007; earlier he had not put two and two together and that it was not unreasonable of him not to have pursued more enquiries than he had. At first instance the trial judge had found actual knowledge of attribution but that was not upheld on appeal.

The Court of Appeal, with Lady Justice Smith giving the leading judgment, held that whilst the case was “close to the line”, the Claimant had by 2001 sufficient knowledge of attributability for the limitation period to start. The correct approach was not to consider whether what the Claimant had done was “not unreasonable” but what the reasonable man in the Claimant’s position would have done. Bracknell Forest Council v Adams [2005] PIQR p11 held that generally the reasonable man would be sufficiently curious about the cause of a significant injury to seek whatever advice was appropriate. If the Claimant had consulted his GP about the cause of his hearing loss, as opposed to wax, the GP would probably have asked about his working history; the Claimant lived in the area of the Chatham dockyards and the likelihood is that the possibility of noise induced deafness would have come to light.

The case will be relevant and of assistance to Defendants where a Claimant’s position is that he did not know of the possibility of attribution of injury to the matters about which he complains, but nonetheless there were matters he did know that might have caused him to enquire.

The judgment is available here.

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