Time limits can prevent a compensation claim for industrial disease.
A case for compensation following an accident is time-barred or out of time if Court proceedings are not commenced within three years of the accident. The date by which the Court action must be started is easy to identify if injury is caused by a one-off accident.
But if the injury is a condition or disease caused by long term working conditions the three year time limit still applies, but when does the clock start to run against a claimant?
Before I explain how the time limit works please note the time limits are not absolute, and like almost every legal rule there are exceptions. Time limits do not start to run until a child reaches 18 years of age, and do not run against those without mental capacity. It is possible to bring an accident or disease case after the three years as the Court has a discretion, and can extend the time limit. I always say do not play with time and get advice now from an experienced personal injury solicitor.
So back to the question of time limits in a compensation case for industrial disease. A recent Court of Appeal case sets out the present thinking of the Courts.
The claimant, Mr Johnson, was exposed to excessive noise in two employments between 1965 and 1979. At times he had been told to wear ear defenders and accepted that he knew that loud noise could damage hearing. He found the ear defenders uncomfortable and did not wear them. He noticed his hearing failing by 2001 but did not associate it with his noisy employment and put it down to ageing and the build up of wax. This is typical as the problem comes on slowly, and is often not really noticed. In 2006 he visited his doctor about something else and asked in passing if there was a build up of wax in his ears. The doctor told him there was no wax 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, and he saw an ENT doctor and a case for compensation began.
The law which applies is in the Limitation Act 1980 and section 11 (4) which says:
“(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.”
The date of knowledge as it is called is worked out against a number of factors. The factors which apply hear ask when did the Claimant know:
“(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 of breach of duty and…”
For Mr Johnson it was argued he did not know he had industrial deafness until he was told by a doctor he had an injury linked to his work. This was not accepted as by 2001 his hearing was poor, and that was enough to show the injury was significant. The claimant does not actually have to know of the injury and its link with work, as the law imposes its own test. The law asks whether a normal adult in the position and with the knowledge of the claimant would have sought expert advice about the cause or attributability of his condition. Put another way, considered objectively, should the claimant reasonably have been expected to seek expert advice? The test is what a person with the essential characteristics of the claimant (such as age and mental capacity) would do if acting reasonably.
I have used some of the Courts language as trying to simplify the words risks complication.
The test is pretty stiff as I see it. You could have an injury and not really think about its link with your work. If the “reasonable man” would have made enquiries about it your case may be too late. Not everybody has compensation at the front of their mind at all times, so why treat them as if they should.
I repeat the Court has the ability to extend the three year time limit, so do not be put off. Do not try to weigh up the likely outcome of a compensation case for industrial disease, just get advice quickly.
This page is based on the Court of Appeal decision in Joseph Johnson v Ministry of Defence and Hobourn Eaton Limited. Neutral Citation Number:  EWCA Civ 1505
Read the Johnson case.