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

[2014] EWCA Civ 904

Case No B3/2013/2090/CCRTF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HHJ Hildyard QC

Luton Crown Court

1LU00119

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 2 nd July 2014

Before

LADY JUSTICE ARDEN

LORD JUSTICE JACKSON

LORD JUSTICE FULFORD

Between

MALONE

RELYON HEATING ENGINEERING LIMITED

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

William Vandyck (instructed by Berrymans Lace Mawer Solicitors) for Appellant

Kaiser Nazir (instructed by Wixted & Co Solicitors) for Respondent

Hearing Hearing date: 27 March 2014

Judgment

Lord Justice Fulford :

Introduction

[1]This is an appeal from Her Honour Judge Hildyard QC sitting at Luton County Court on 22 June 2013.

[2]Anthony Malone (the claimant and the respondent to this appeal) sought damages for alleged noise-induced hearing loss and moderate tinnitus arising out his employment over a period of 27 years with Reylon Heating Engineering Limited (the defendant and the appellant in this appeal).

[3]The appellant company, which is represented by its insurers (Zurich Commercial), was notified of the potential claim in a letter dated 13 March 2009 and proceedings for negligence and breach of statutory duty were issued on 21 January 2011.

[4]There was agreement that the full value of the hearing loss was £13,500. The judge found for the respondent and following apportionment (to allow for noise for which the appellant was not responsible), he was awarded £3,375.

The Issue on the Appeal

[5]The sole issue in this appeal is whether the judge appropriately disapplied the limitation period, pursuant to section 33 Limitation Act 1980. The legislation 6. The Limitation Act 1980

[11]Special time limit for actions in respect of personal injuries. (1). This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. […] (4). […] the period applicable is three years from—(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.

[14]Definition of date of knowledge for purposes of sections 11 and 12. (1). […] in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and […] and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. […] (2). For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (3). For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire— (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

[33]Discretionary exclusion of time limit for actions in respect of personal injuries or death. (1). If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—(a) the provisions of section […] 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. […] (3). In acting under this section the court shall have regard to all the circumstances of the case and in particular to— (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 […];

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. […] The History

The legislation

[6]The judge found that the appellant employed the respondent between 1977 and 2004, save that for five years between 1988 and 1993 he was treated as self-employed. That hiatus was unimportant as regards the issues in the case, given the appellant’s obligations to the respondent for exposure to noise were unaffected. Prior to commencing work with the appellant, he served for two years in the army and he worked for about 11 years with another employer in circumstances that may have adversely affected his hearing.

[7]The judge accepted the respondent was an honest witness who had done his best to assist the court, and his account was not significantly undermined by his difficulties over precise dates and timings. His case was that his employment with the appellant company involved servicing and maintaining the pipe work at factories, for which he used various power tools such as grinders, cutting equipment, compressors and hammer drills. Sometimes he operated a jackhammer continuously for 3 – 4 hours. His shifts were, on occasion, as long as 12 hours, and he was exposed to excessive noise for up to 8 hours a day. It was frequently the position that his employers failed to provide him with adequate hearing protection whilst he was working, albeit this improved towards the end of his employment. A Consultant Forensic Engineer, Mr Dawson, who was jointly instructed by the parties, was of the opinion that if the respondent’s evidence was accepted there had been a breach of duty in relation to noise exposure.

[8]The parties also jointly instructed Mr John Pickles, a Consultant Otolaryngologist Head and Neck surgeon, who reported on 21 August 2012. He concluded that the respondent became aware of damage to his hearing in or about 2000: he first saw his general practitioner on 5 October 2000 and he was referred to a specialist (an ENT surgeon)on 17 January 2001 who provided him with a hearing aid. He developed, most probably in the latter part of 2000, what is described as “moderate” tinnitus as a result of an accident when there was a loud compressed air escape (judgment [64]). This has been referred to as an explosion. Mr Pickles concluded that the respondent has experienced hearing loss of 46 db (23 db from exposure to excessive noise, 22 db as a consequence of ageing and 1db on account of vascular disease). He had been aware of his hearing loss from the 1990s, thereby demonstrating that the explosive event in 2000 was not the sole cause of his impaired hearing.

[9]The appellant company was still trading in 2004. Its final accounts were filed up to March 2005. It went into administration on 28 February 2006 and into liquidation on 29 February 2008. Having been notified of the claim on 13 March 2009, the appellant’s insurers sent a letter of acknowledgment on 24 August 2009 indicating that they were searching for documentation. On 10 September 2009 the respondent’s solicitors provided details of the names of four of the respondent’s supervisors. The liquidation concluded on 13 July 2010 and the company was dissolved on 22 October 2010. These proceedings were issued on 21 January 2011. On 6 June 2011 the appellant contacted the liquidators by telephone asking for relevant personnel and occupational health records, along with the details of any noise surveys. The liquidators disclosed that the company records, which had been held in storage, had been destroyed although they should have been kept for 12 - 15 months following the date of dissolution. It is to be noted, therefore, that this enquiry was made within 8 months of dissolution. In the event, no relevant documents have been found. On 14 November 2012 the appellant carried out a director search to identify the former directors of the company. The five directors to whom they wrote failed to respond.

The respective cases of the parties at trial

[10]It was accepted by the respondent that he had constructive knowledge within the meaning of sections 11 and 14 of the Limitation Action Act 1980 by the end of January 2001.

[11]Given the section 11 limitation period had expired when the respondent issued his claim in 21 January 2011, he requested that it be disapplied under section 33 for the entire period of his employment, arguing that it would be equitable to permit the action to proceed in light of all the circumstances. During the course of his oral submissions before the judge, Mr Nazir, counsel for the respondent, identified two relevant periods: first, prior to 2001 and, second, between 2001 and 2004. It was contended that if the court decided to exercise its discretion as regards the later period, it would be logical to adopt the same stance as regards the respondent’s earlier employment because “the defendant’s position in relation to defending that latter period is the same now as it is in relation to the former period” (transcript page 15).

[12]However, in Mr Nazir’s skeleton argument before the court below he argued that damage to the respondent’s hearing on account of excessive noise and lack of protection “continued” until his employment ended in 2004. On this basis it was suggested that his cause of action generally “accrued” in 2004 when the alleged tortious acts and omissions ended. Mr Nazir, summarised this argument as follows:

“24. […] In cases such as this where the Claimant has been exposed to excessive noise over many years, the accrual of the cause of action is deemed to be the date the tortuous exposure ceased – it is on this date that the injury was “completed”

. To find otherwise would result in claimants being required to limit their claims to injury caused within 3 years of issue. ”

[13]At that stage, therefore, the respondent was seemingly arguing that the primary limitation period for the entirety of the injury for which the appellant was responsible expired in 2007, three years after he ceased working.

[14]However, on either formulation the respondent invited the judge to exercise her discretion under section 33 of the Act as regards injury to his hearing incurred during his employment, on the basis that the damage was continuous and the issues were the same for the entirety of the period.

[15]The appellant emphasised that the respondent knew of the damage, or had constructive knowledge of it, by 2001 when he received the medical advice set out above. The appellant’s case as regards limitation was as follows:

“The primary limitation period of three years runs from the accrual of any cause of action. C’s s symptoms are alleged to have started in the 1990s, with a visit to a consultant, hearing aids and tinnitus by 2001. Primary limitation against D in relation to symptoms by then therefore starts no later than that, save insofar as C is able to delay the start of the period by reference to section 14 of the Limitation Act 1980. D accepts that primary limitation for injury caused in the period 2001-2004 would start progressively later.”

[16]The appellant argued at trial that analysis of the respondent’s hearing loss has been rendered less clear by the passage of time, and that the impact of particular events, such as the gas explosion in 2000, is now unascertainable. The appellant accepted that the respondent was an honest witness, but stressed he was unreliable on some issues. Moreover, the appellant suggested it had been unable to investigate or defend this claim because relevant records had been destroyed or lost during the years since these events occurred. It was submitted that this uncertainty was of particular importance because the primary three-year limitation period runs from the point in time that a particular cause of action accrues, and that any specific deterioration in the applicant’s hearing resulted in a new period of limitation. The judge’s decision Damage

[17]The judge found that the respondent had been exposed to “injurious levels of noise” [14] whilst employed by the appellant and that he had not been provided with adequate hearing protection. The judge observed that the company had been unable to adduce any evidence that undermined the central contention that the respondent was exposed to excessive noise as a result of its negligence and/or breach of statutory duty. Indeed, the unchallenged expert evidence from Dr Dawson was that that he had been exposed, in all probability, to noise levels in excess of 90dB(A)Lep,d. In the judge’s view, the respondent suffered hearing loss as a result of the accident/explosion in 2001, which “made an existing condition significantly worse” and that “the damage done after 2001 was material but not nearly as bad as what had gone before” [81].

[18]Focussing for a moment on the later period, although there was no medical evidence that demonstrated the respondent’s hearing deteriorated between 2001 and 2004, the judge found that “continued exposure (to excessive noise) was likely to have caused continued damage and that there was no break in causation” [31(b)]. She decided that “continuing damage was done up until 2004 […] for an unquantifiable though probably lesser part of the damage than that caused by the [2000] incident” [35]. She noted that the first reference in the medical notes to tinnitus was in February 2004 and she inferred that it was caused after the 2000 incident.

The primary limitation period for the injury

[19]The judge determined that the respondent was entitled to bring the “whole claim” up to 2007 [53], given the damage continued until 2004 and she seemingly accepted the respondent’s written argument that this was “a case of continuing exposure up until 2004 causing damage up until that time and that in those circumstances the cause of action continues to accrue up until the time he ceased his employment” (respondent trial skeleton [28]). The judge posed the central question that required resolution in the following way:

“the issue which determines whether the limitation period expired in 2007 or 2004 is whether there was continuing damage between 2001 and 2004” (my emphasis). On this basis she decided that the primary limitation period for the injury for which the appellant was responsible expired in 2007. She expressed her conclusion as follows: “35. I agree with the D’s (sic) that if the only injury was that caused by the incident in 2001, then he had knowledge with the meaning of s14 in 2001, and the primary limitation period would have expired sometime in 2004. But on the basis of the C’s claim, continuing damage was done up until 2004 so for an unquantifiable though probably lesser part of the damage than that caused by the 2001 incident. 36. I find as a fact that the primary limitation period expired in 2007. I must therefore turn to consider whether it is equitable to allow the claim to proceed having regard to the factors set out in that section (my emphasis).”

[20]Therefore, the judge apparently concluded that there was only one limitation period that fell to be considered, which applied to the entirety of the respondent’s employment.

Exclusion of the limitation period

[21]It was the judge’s conclusion that prejudice to the appellant ceased in 2009 when notification was provided to the appellant’s insurers. She observed:

“24. […] I focus on 2009 rather than 2011 because I find that had the insurers done investigations in 2009 then their position in 2011 would not have been materially different to 2009.”

[22]In assessing the prejudice to the appellant in defending the action, the judge observed that “the determination of whether the primary limitation period expired in 2004 or 2007 is of critical importance in determining whether or not to allow the case to proceed under s. 33” [25]. The judge accepted that the appellant had a “strong case” as regards prejudice if the period of relevant delay was between 2004 and 2009. She determined that if the period was 2007 to 2009 “the difficulties in defending the case for the (appellant) are not materially worse in 2009 than in 2007” [24] and she decided this delay had not materially compromised the appellant’s ability to defend the claim [47]. The judge observed that the same documents would have been available to the appellant whether he had been notified of the claim in 2007 or 2009 [48]. The judge put the matter thus:

“48. […] The nature of the case against them was based on expert evidence of hearing loss and likely exposure to excess noise. The defence of the case would depend primarily about marshalling evidence about what their systems were, what details they could find out about the 2001 incident [this refers to the explosion in late 2000], and what they details they could find out about the effects of C’s previous employment with other employers. Their difficulties in dealing with each of these issues in 2007, when the company had not been trading for 2 or 3 years, and in 2009 is unlikely to have been materially worse. They would have had the same documents available. 49. The key question on prejudice is does the passage of those extra two years make the position materially worse because for example they would have more difficulty in finding witnesses, and any witness they found would have a poorer recollection.”

[23]The judge decided that the difficulties for the experts were the same in 2007 as they had been 2009 and that it was extremely unlikely that “recollections of what conditions were like in C’s pre-D employment i.e. some time in the 70s would be any different in 2007 as opposed to 2009” [51]. She also concluded that the appellant had not undertaken reasonable and timely enquiries in the period from 2009 to 2011. The arguments on the appeal The judge’s decision as regards the limitation period

The arguments on the appeal

[24]As set out above, the relevant date of knowledge was in January 2001. As

the judge observed:

“18. It is conceded on behalf of the C that the limitation period had expired at the time they issued their claim. It is conceded on his behalf that the C had constructive knowledge within the meaning of s 11 and s 14 Limitation Act 1980 by January 2001 albeit that earlier actual/constructive knowledge is denied on the C’s behalf.”

[25]In consequence, the appellant contends that the respondent’s cause of action was complete in relation to any harm he had suffered by then. He had already sustained significant injury (“virtually symmetrical high-tone loss, possibly due to noise exposure” for which he had been prescribed a hearing aid (judgment [63])), and in accordance with sections 11 and 14 of the Limitation Act, it is argued limitation started to run from this date of knowledge.

[26]The appellant argues that the judge was wrong to conclude that the additional harm incurred during the 2001-2004 period operated to delay the limitation period, and it is submitted that the sustained and continuing damage to his hearing was a divisible form of injury. Mr Vandyck, counsel for the appellant, suggests that any later infliction of damage should not operate to put back or suspend the commencement of the limitation period as regards earlier damage. In this regard he relies on the decision of Mustill J in Thompson v Smiths Shiprepairers (North Shields) Ltd

[1984] QB 405

, namely that apportionment is possible in hearing loss cases, notwithstanding the difficulties that can exist as regards making a precise quantification of the loss caused during any relevant period (see pages 274 – 275). This approach was approved by the Court of Appeal in Holtby v Brigham & Cowan (Hull) Ltd

[2000] ICR 1086

; 2000 3 AER 421 (see the judgment of Stuart-Smith LJ at page 1095 E).

[27]For the respondent, Mr Nazir accepted in his oral submissions that hearing loss is a form of divisible injury and that the respondent was necessarily asking for two extensions of the limitation period. Mr Nazir accepted that, if it stood alone, he had considerable difficulties in submitting that the limitation period should be extended for the pre-2001 period but he argues that the judge was right to exercise her discretion to extend the limitation period for the entirety of the respondent’s employment, essentially because it was continuous.

[28]The respondent argues that the judge had made findings as regards two dates of knowledge (pre- and post-2001) and he suggests that the judge did not delay the start of the limitation period for the pre-2001 injury, but instead he contends she decided that there was further injury post-2001 which resulted in a further limitation date of 2007 in respect of additional injury.

[29]Finally on this issue, the appellant invites the court to focus on the terms of section 11 of the Limitation Act. As set out above, this provides for a limitation period of three years from “a) the date on which the cause of action accrued; or b) the date of knowledge (if later) of the person injured”. Against that background it is highlighted that in relation to the significant injury that had been inflicted on the respondent up to 2001, the date of his knowledge was January 2001.

[30]The appellant contends that the approach of the judge, if accepted, leads to the unsustainable result that the start of a limitation period is indefinitely postponed if harm of the kind already inflicted continues during a later period. It is suggested that this interpretation fails to apply the plain words of the section and it ignores the jurisprudence to which I have just referred. The judge’s approach to the impact of the delay

[31]As I have already stressed, the judge focussed on the impact of the delay between 2007 and 2009 (viz. the time between the end of the three year limitation period after the respondent left the appellant’s employ in 2004 and the date when he received notification of the claim: 13 March 2009). She decided that the delay during this period did not materially add to the prejudice already experienced by the appellant prior to then. However, the judge indicated that if she had considered prejudice before 2007, she would not have disapplied the limitation period:

“25. […] the determination of whether the primary limitation period expired in 2004 or 2007 is of critical importance in determining whether or not to allow the case to proceed under s 33. […]”

[32]The appellant stresses that even on the basis that the primary limitation period expired in 2007, the judge concluded that the “matter is very near the border-line” [59] as to whether she should exercise her discretion under section 33 to allow the claim to proceed.

[33]Against that background the appellant argues that the judge erred in failing to take account of the earlier prejudice, given the respondent brought the claim outside the limitation period. In this regard Mr Vandyck relies on Donovan v Gwentoys [1990] 1 W.L.R. 472. In that case the defendants were first notified of the accident and its circumstances five years after it occurred and the plaintiff issued the writ 5½ months after the expiry of the period of limitation. Lord Oliver observed at page 479:

“The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge's judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after the expiry of the limitation period, he felt constrained to regard the time which had been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion.”

[34]The appellant also relies on Collins v Secretary of State for Business Innovation and Skills

[2014] EWCA Civ 717

on the issue of the proper approach to delay prior to the date of knowledge, and in particular paragraphs 65 and 66 of the lead judgment given by Jackson LJ (Lewison and Macur LJJ agreed): 65. None of [the relevant] authorities discussed the issue of pre-limitation period effluxion of time at any length. In a long tail case the problem seems to me to be this. Criterion (b) [section 33 (3)(b)] requires the court to focus specifically upon the extent to which the evidence has become less cogent during the claimant’s delay. If the claimant is out of time, the House of Lords’ decision in Donovan allows the court to take account of prejudice accruing since the date when the claimant knew he/she had a claim. The decisions in Price, AB and Davies establish that the court can also take account of delay before the date of actual or constructive knowledge. On the other hand, it would be absurd if the defendant could rely upon all the prejudice accruing from the date when the breaches of duty occurred, alternatively from the date when (unknowingly) the claimant suffered injury. If all that prejudice could be fully taken into account, section 33 (3) (b) would serve no useful purpose. Loss of cogency of evidence during the limitation period must be a factor which carries more weight than(a) the disappearance of evidence before the limitation clock starts to tick or

(b) the loss of cogency of evidence before the limitation clock starts to tick. Furthermore both the claimant and the defendant may rely upon the effects of delay before the limitation clock starts to tick for different purposes. 66. Construing section 33 (3) as best I can in the light of the authorities, my conclusions are: i) The period of time which elapses between a tortfeasor’s breach of duty and the commencement of the limitation period must be part of “the circumstances of the case” within the meaning of section 33 (3). ii) The primary factors to which the court must have regard are those set out in section 33 (3) (a) to (f). Parliament has singled those factors out for special mention. iii) Therefore, although the court will have regard to time elapsed before the claimant’s date of knowledge, the court will accord less weight to this factor. It will treat pre-limitation period effluxion of time as merely one of the relevant factors to take into account. iv) Both parties may rely upon that factor for different purposes. The claimant may rely upon the earlier passage of time in order to buttress his case under section 33 (3) (b). The claimant may argue that recent delay has had little or no impact on the cogency of the evidence. The damage was done before the claimant started being dilatory. The defendant may rely upon the earlier passage of time, in order to show that it already faced massive difficulties in defending the action; therefore any additional problems caused by the claimant’s recent delay are a serious matter. It is for the court to assess these and similar considerations, then decide on which side of the scales to place this particular factor.

[35]However, the appellant observes that in the present case the greater part of the problems concerning the availability of evidence and its cogency occurred after the date of knowledge.

[36]Given that date is in January 2001, the appellant contends that the judge failed to take sufficiently into account the fact that the appellant company was a going concern until 2004/5 when it ceased trading, and thereafter it went into administration, followed by liquidation. The claim was not notified to the appellant’s insurers until 2009 (the respondent having read about Noise Induced Hearing Loss in a newspaper in 2008). The delay inevitably affected, first, the opportunities for any proper investigation (including locating witnesses); second, the reliability of witnesses’ recollections; and, third, the availability of documents. The appellant stresses that the impact of the delay since 2004 is considerable.

[37]The respondent argues that the judge’s approach to delay was wholly appropriate. Mr Nazir suggests that the judge’s approach to the period of time before the respondent had knowledge accorded with the guidance given in Collins v Secretary of State for Business Innovation and Skills, particularly given she focussed on the question of whether the recollections of the witnesses as regards the conditions in the 1970s would be better in 2007 than they were in 2009 [51] and [52]. It is stressed that she reminded herself correctly as to when the claim was notified to the appellant and the date by which he had constructive knowledge. She acknowledged the problem over witnesses’ recollections and the fact that the company ceased trading and in due course went into liquidation. It is emphasised that the appellant failed to carry out timely investigations when first notified of the claim, and it is suggested as a result the prejudice flowing from the failure to obtain relevant documents or other evidence should be significantly discounted. Furthermore, he was provided with the names of some relevant individuals in September 2009 (see [9] above).

[38]The respondent argues, therefore, that if the appellant had made timely enquiries, they were likely to have been able to secure the relevant materials, whether in full or part, and they were dilatory in their approach in that they did not commence their investigations until May 2011. Discussion The judge’s decision to allow the action to proceed

Discussion

[39]As I have already observed, the judge appears to have accepted Mr Nazir’s written submission at trial that the cause of action as regards the entire period of the respondent’s employment “accrued” when the injury was “completed”, in other words when he ceased working for the appellant in 2004. The judge identified only one limitation period, which she applied to the entirety of the respondent’s employment and she failed to reflect the divisible nature of this form of injury. As a consequence, the judge’s approach to section 33 of the Limitation Act is vitiated because she erroneously decided that the only relevant period of delay was between 2007 and 2009. Instead, she should have identified the two periods of delay: 2004 – 2009 for the pre-2001 damage and 2007 – 2009 for the post-2001 damage. As Mr Nazir accepted during the course of his submissions before this court, there was no proper basis for the judge to suspend or put back the limitation period for the earlier period or to treat the injury for the entirety of the respondent’s employment as being indivisible, given that apportionment is possible in hearing loss cases and was appropriate in the present case.

[40]Since, in the judge’s view, the determining factor as to whether to allow the entire case to proceed was whether the primary limitation period expired in 2004 or 2007, together with her acceptance that the appellant had a strong case as regards prejudice if the period of relevant delay was between 2004 and 2009, her conclusion that it was equitable to exclude the time limit is unsustainable. The judge should have considered, separately, whether to allow the case to proceed for the pre-2001 injury, bearing in mind the prejudice caused by the delay since 2004, and whether to allow the case to proceed for the post-2001 injury. It is to be stressed that the decision as regards the first period was potentially relevant to her decision on the second, given the court needs to have regard to all the circumstances of the case, and that inevitably includes considering why this had become, overall, a distinctly stale claim for damages.

[41]The court needs to treat the lapse of time during the pre-limitation period with a significant degree of care in order to ensure that it is accorded the correct degree of weight, as discussed in Collins v The Secretary of State for Business Innovation and Skills and another (see [34] above).

[42]It is also useful to stress that once the limitation clock starts ticking, it is appropriate to consider the delay since the claimant had knowledge rather than focussing solely on the delay from the end of the limitation period (see Beattie v British Steel; Monk v British Steel (CA, unreported, 6.3.97)).

The role of the Court of Appeal

[43]Since the judge applied the wrong approach, it is the responsibility of this court to re-exercise the discretion provided by section 33 of the Limitation Act.

The pre-2001 injury

[44]I am persuaded that the judge correctly concluded that the prejudice to the appellant was considerable if the relevant period was between 2004 and 2009. This would apply to the pre-2001 injury. In 2004 the company was still trading, whereas by 13 March 2009 – when the appellant was notified of the claim – the company had gone into liquidation (29 February 2008). The relevant personnel and occupational health records, along with the details of any noise surveys, were destroyed some time before 6 June 2011, although in accordance with the relevant policy they should have been retained at least until October 2011. The five years’ delay in notifying the appellant of the proposed proceedings made it substantially more difficult for the parties to adduce relevant evidence as to, first, the levels of noise to which the respondent had been subjected; second, the degree to which he worked in circumstances of excessive noise; and, third, whether he was provided with hearing protection (and the extent to which he wore it). Inevitably the opportunity to secure evidence from directors of the company and the appellant’s supervisors or work colleagues has diminished over the years. In addition, the ability to investigate the extent to which the respondent’s hearing loss was the result of working in conditions for which the appellant was not responsible similarly lessened with the passing of time. No relevant documents have been found and, save for Mr Tibbles who was employed by the appellant and worked alongside the respondent, no evidence was available from witnesses who had direct knowledge of the relevant working conditions.

[45]Addressing the factors set out in section 33(3) Limitation Act, under a) the delay in commencing proceedings as regards the pre-2001 injury was inordinate and it is insufficiently justified by reference to the respondent having read an article about hearing loss in 2008. As to b), for the reasons already set out, the evidence adduced at trial was markedly less cogent than it would have been if the action had been commenced within the time limit set out in section 11 Limitation Act. For c), there was a real element of dilatoriness on the part of the appellant after the insurers were notified of the claim, and they significantly delayed in pursuing some of the significant lines of enquiry. Factor d) is not relevant and for e), the respondent acted promptly once he had read the article in the press. Neither party has relied on factor f).

[46]The court needs to assess i) the prejudice to the respondent if his claim is barred by section 11 of the Limitation Act, and ii) the prejudice to the appellant if the action is allowed to proceed, having been commenced out of time. The court will have regard to all the circumstances of the case, and including the extent of the inactivity by the appellant between 2009 and 2011. In my judgment the length of the delay as regards the pre-2001 injury has led to very considerable forensic prejudice for the appellant. Bearing in mind that the respondent is seeking an indulgence of the court which “is exceptional, in the sense that the respondent seeks an exemption from the normal consequences of failing to commence proceedings within the limitation period” (per Jackson LJ Sayers v Hunters (a firm) and another

[2012] EWCA Civ 1715

; [2013] I W.L.R. 1695, paragraph 53), I unhesitatingly conclude that the prejudice to the appellant outweighs the prejudice to the respondent for the purposes of section 33(1) Limitation Act and it would not be equitable to allow the action as regards the pre-2001 injury to proceed.

The post-2001 injury

[47]Given the respondent allowed both limitation periods to expire, the court will necessarily consider the overall circumstances of the case and this will include an analysis of the prejudice already created as regards the pre-2001 injury when assessing the post-2001 period. As discussed earlier, apportionment is appropriate in hearing loss cases but the delays in this case on the part of the respondent have made it particularly difficult to assess the extent of any injury between 2001 and 2004. The damage to the respondent’s hearing was inflicted over a considerable period of time and the entirety of the delay has rendered it hard to determine the nature of any harm in the later period (although I have been careful not to place disproportionate weight on the difficulties arising as result of the passage of time prior to the respondent’s date of knowledge). To summarise, the judge observed “I think the essence of it is that the bulk of the damage was probably done in 2001, but there was continuing damage done thereafter, up until 2004” [79], “I find the damage done after 2001 was material but not nearly as bad as what had gone before” [81] and “continued exposure was likely to have caused continued damage” [31(b)]. The joint expert, Mr Pickles, could only express the opinion that noise induced hearing loss may have occurred after 2001. Accordingly, the judge relied substantially on the evidence of the respondent and Mr Tibbles, and she observed “it is a difficult case to quantify damage in particular identifying how much of the loss might have been caused by the explosion in [2000]” [80].

[48]It follows that a narrow focus on the period 2007 – 2009 is inappropriate, and the prejudice to the appellant must be assessed by reference to the delay on the part of the respondent in the context of the case as a whole, given particularly the continuing harm of which he had constructive notice in early 2001.

[49]It is necessary also to take proportionality into account. In Adams v Bracknell Forest Borough Council

[2004] UKHL 29

; [2005] 1 A.C. 76 Lord Hoffman addressed the issue of proportionality in the context of modest claims:54. In Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, 139-140 Sir Murray Stuart-Smith said: "32. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice. 33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.”

55. Peter Gibson and Brooke LJJ agreed. Their Lordships think that these observations from judges with considerable experience of exercising and overseeing the section 33 jurisdiction carry great weight. As in Phelps

[2001] 2 AC 619

, where the plaintiff recovered £12,500 general damages and about £32,000 special damages (mostly an estimate of loss of earnings), the uncertainties of causation and quantification mean that in the event of success an award is likely to be relatively modest. The council is in a very difficult position and there are no special features about the reasons why Mr Adams left his claim so late which tilt the balance in his favour.” "32. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice. 33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.”

[50]Given the judge’s award for the entire period was £3,375, the value of the claim for the period 2001 – 2004 would be exceedingly small, since most of the injury had been inflicted prior to that time.

[51]For these reasons, for the later period also I conclude the prejudice to the appellant outweighs the prejudice to the respondent, and, re-exercising the section 33 discretion, I consider it is inequitable to allow this part of the claim to proceed.

[52]I would allow this appeal. Lady Justice Arden: I agree Lord Justice Jackson: I also agree