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Court of Appeal reaffirms limitation principles in NIHL litigation

By Rory Holmes

  1. In Carr v Panel Products (Kimpton) Limited [2018] EWCA Civ 190 the Court of Appeal have recently discussed and reaffirmed various limitation principles in NIHL litigation.
  2. Mr Carr brought a modest NIHL claim (agreed damages of £7,000) in the Liverpool County Court. At first instance the Judge held: (a) that the claim was statute barred on the basis that the claimant had actual or alternatively constructive knowledge more than 3 years prior to issue, and; (b) that the claimant had failed to prove that the s.33 discretion should be exercised in his favour.
  3. As for constructive ‘date of knowledge’ issues, the case represents a reaffirmation of Dame Janet Smith’s observations in Johnson v Ministry of Defence [2012] EWCA Civ 1505.
  4. The Judge was ‘perfectly entitled’ to make a finding that a hypothetical GP would have advised the claimant that noise was a possible cause for his deafness, had the claimant arranged an appointment. The Judge’s approach was sound, notwithstanding that: (a) the parties’ respective medico-legal ENT experts disagreed about whether the symptoms were in fact caused by noise; (b) the Judge did not share Dame Janet Smith’s experience of deafness cases, and; (c) the Judge gave no reasons, other than referring to Johnson, why he considered that a hypothetical GP consultation would have revealed noise as a possible cause.
  5. As for the equitable discretion, the case follows on from Sir Terence Etherton’s MR recent analysis of s.33 principles in Carroll v The Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992, a personal injury action arising out of alleged harm caused to the claimant during his training for, and execution of, undercover police activity posing as a drug user.
  6. In Carr the Court of Appeal signalled that the summary of general s.33 principles by Sir Terence Etherton MR at paragraph [42] of Carroll – whilst not to be read as a statute – will “no doubt now form the starting point for any court’s consideration of issues arising under s.33 of the Act”. The essential question, as the Master of the Rolls put it, is “a balance of prejudice and the burden is on the claimant to show his or her prejudice would outweigh that of the defendant”.
  7. McCombe LJ’s observations at paragraph [49] of Carr are noteworthy. Although oral submissions were made, the Claimant had failed to advance any specific points of prejudice within either his witness statement or his pleading, and furthermore, his witness statement said nothing at all as to why any discretion under the Act should be exercised in his favour. The Judge, therefore, “could not be faulted for addressing only those points advanced by the parties”.
  8. At paragraph [84] McCombe LJ “added into the scales the question of proportionality”, given that the claim had “already given rise to costs far in excess of what could conceivably be justified in pursuit of a claim for £7,000”. Therefore Carr continues the theme of proportionality points in the context of s.33, following on from Malone v Relyon Hearing Engineering Ltd [2014] EWCA Civ 904, Collins v Secretary of State for Business, Innovation and Skills [2014] EWCA 717, and Carroll.


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