Noise-induced deafness and time limits for claims

In Furniss v Firth Brown Tools Ltd (2008) the issue of limitation was considered by the Court of Appeal. 

The claimant, Mr Furniss, brought a claim for noise induced deafness arising out of his employment with the defendant. His claim was dismissed by the court following a preliminary issue hearing on the grounds that he had issued his claim outside the limitation period and his claim was statute barred by sections 11 and 14 of the Limitation Act 1980 (the Act). The claimant appealed.

Section 11 of the Act states that a claim must be brought within three years of the date on which the claimant’s cause of action accrued, or the claimant’s “date of knowledge” if later.  

“Date of knowledge” (defined in Section 14 of the Act) refers to the date on which the claimant knew that his “injury in question was significant”. The limitation period can be disapplied altogether if the court chooses to apply its discretion under section 33 of the Act.

The claimant had worked for the defendant from 1976 to 1982, and had never been provided with hearing protection during the course of his employment. He attended his GP in 2003 about a deterioration in his hearing and was advised that he had a build up of wax, which was removed.  

In 2004, following a further deterioration in his hearing, he was diagnosed with tinnitus, which according to a consultant was a result of noise exposure.

He issued a claim for damages on 3 June 2006. The defendant argued that for the claim to proceed the claimant must establish that his date of knowledge was on or after 3 June 2003. The court held that the claimant knew about his injury around 1998 and dismissed the claim, refusing to exercise its discretion under section 33.

The claimant appealed, arguing that there was no evidence to substantiate the judge’s conclusions that he ought to have known about his hearing loss in 1998.  

He was not asked about when he first thought he had lost his hearing and the only period about which he was asked was in 2004. Furthermore, the judge’s reasons for statute barring his claim were unsupported by expert evidence.

The Court of Appeal held that the trial judge had not properly dealt with the issue as to when the claimant knew about the significance of his injury. Had this question been dealt with, the judge would have seen that there was little evidence to support the finding that the claimant was aware of the significance of his hearing problems by 1998.  

No conclusion was reached as to when the claimant had knowledge that his injury was significant. The defendant’s burden of proof under sections 11 and 14 of the Act had not been discharged and the claimant was allowed to proceed.