Better late than never? Perhaps not.

The main issue in two of the cases was the claimant’s date of constructive knowledge.

The decisions in Collins v Secretary of State for Business, Innovation and Skills and Ors [2014] EWCA Civ 717 and Platt v BRB (Residuary) Limited [2014] EWCA Civ 1401 both demonstrate the court’s inclination to be strict when determining constructive knowledge under section 14 of the Limitation Act.

Arguably the most significant decision (and one which presents interesting questions as to how it is likely to be applied) is Malone v Relyon Heating Engineering Limited [2014] EWCA Civ 904.

Material Facts of Malone

Mr Malone pursued a claim for noise induced hearing loss. He worked for the defendant from 1977 until 2004 as a maintenance worker.

He made the usual allegations of working in a noisy environment using power tools such as grinders, cutting tools and hammer drills. He said he was given no warnings regarding the dangers of excessive noise and he was not provided with hearing protection.

It was agreed between the parties that the claimant had constructive knowledge of his injury by the end of January 2001. The only matter for the court was whether section 33 discretion was to be exercised.

Chronology

• The defendant ceased trading around 2004 and entered administration on 28 February 2006

• A letter of claim was sent to the defendant’s insurers on 13 March 2009. This was acknowledged in August 2009

• The liquidation of the defendant concluded on 13 July 2010 and the company was dissolved on 22 October 2010

• Formal proceedings were commenced against the company on 21 January 2011

• The company’s liquidators confirmed on 6 June 2011 no documents were available

• Subsequent letters sent to the company’s former directors evoked no response

First Instance

The judge at first instance found the claimant’s cause of action accrued in 2004 when he left employment with the company. Therefore, primary limitation expired in 2007.

A delay in sending the letter of claim until 2009 did not affect the claim - as the same documents were not available in 2009, as were also unavailable in 2007.

The judge also criticised the defendant for not undertaking reasonable and prompt enquiries between 2009 and 2011. The judge exercised discretion under section 33 of the Limitation Act.

Court of Appeal

The Court of Appeal (COA) held the judge at first instance had taken too simplistic a view of the relevant periods of delay. The judge ought to have identified two periods of delay; 2004 to 2009 and 2007 to 2009.

The first period was when the claimant’s cause of action accrued in respect of his deafness (ie three years after his initial - 2001 - date of knowledge).

The second period was when the claimant’s cause of action accrued in respect of continuing exposure to noise with the defendant. In effect, the second period was for an exacerbation-type injury.

The judge therefore ought to have considered whether to exercise discretion for both periods and not just in respect of the claimant’s employment as a whole.

The COA held there was prejudice to the defendant in respect of the first period as the company would still have been trading had the claim been brought within this time. It was further held that given the claimant had allowed the second limitation period to expire, prejudice had to be evaluated in the context of the prejudice suffered in respect of the earlier period.

It was difficult to assess the damage done to the claimant’s hearing in the second period only because of the passage of time.

Finally, the court also has to consider proportionality. The value of the claim for the second period was small and it would not therefore be equitable to exercise discretion on proportionality grounds either.

Analysis

Malone is an interesting decision for the way in which the court dealt with distinct limitation periods. Factual scenarios similar to this are frequently encountered by defendants.

Malone raises further points. Had Mr Malone issued his claim in 2007, limitation in respect of the ‘second’ injury would arguably not have expired.

It would presumably have been open for the defendant to plead limitation in respect of the pre-2001 period, restricting Mr Malone’s damages to the exacerbation injury?

How would a court deal then with assessing damages in such cases?

This is certainly a situation defendants will encounter. It will make assessing the value of such claims very difficult for both sides and indeed the judiciary. Perhaps the simple solution will be a time-based apportionment - though that may not be to defendants’ advantage (or co-insurers’).

This case is not just relevant in noise induced hearing loss claims. It would be open to a defendant in any long tail disease claim to apply the same principles where factually relevant.

Notwithstanding those uncertainties, Malone is undoubtedly a helpful decision for defendants. It is clearly a decision to rely on post-litigation but perhaps more importantly it is a decision to cite at the pre-litigation stage where factually appropriate.

It would take a brave claimant to issue on a claim with such a clear COA decision standing in their way.

Limitation is becoming the most fruitful area for a defence for defendants in disease claims. Decisions like Malone only serve to strengthen a defendant’s position.