Norton v Corus UK Ltd

Under the Limitation Act 1980, constructive knowledge is assessed objectively. A person aware of a personal injury sufficiently serious to justify seeing a solicitor if a claim were known should be sufficiently curious about its cause to seek appropriate expert advice. A later realisation that conduct might amount to negligence does not postpone the date of knowledge. A defendant may establish the likely availability of diagnosis or specialist advice through common knowledge and common sense; expert evidence about a hypothetical consultation is not always required. On a limitation preliminary issue, the court proceeds on the basis of the condition and causation necessary to the claim.

The claimant, who had worked in steelworks, alleged that exposure to vibrating tools caused Hand Arm Vibration Syndrome. His cause of action accrued in about 1992, but the claim was issued on 10 September 2004. He acquired actual knowledge in 2003, confirmed by medical diagnosis in February 2004.

On a preliminary limitation issue, the county court held that he had constructive knowledge by 1997, probably from 1992 or 1993, and declined to allow the claim to proceed under section 33 of the Limitation Act 1980. The appeal concerned the burden of proving constructive knowledge, the significance and attributability of the injury, and whether the probable outcome of an earlier medical consultation could be inferred without expert evidence.

1. Appeal dismissed. The Court of Appeal unanimously upheld the finding that the claim was statute barred.
2. Under section 14 of the Limitation Act 1980, the defendant bears the burden of establishing constructive knowledge. The inquiry is objective. Applying Adams v Bracknell Forest Borough Council [2005] 1 AC 76, a person aware of a personal injury sufficiently serious to justify seeing a solicitor, if a claim were known, should be sufficiently curious about its causes to seek appropriate expert advice.
3. The injury was no more significant in 2003 than when the condition became established in 1992 or 1993. Since it was then sufficiently serious to justify proceedings, it had been significant from the earlier date. The claimant also knew that the injury was attributable to the tools because the symptoms worsened during their use and improved afterwards. His later conversation with his brother-in-law supplied only the link to a possible negligence claim, and knowledge of legal negligence was irrelevant under section 14(1).
4. The Recorder did not improperly assume the precise response of a particular general practitioner. Given the established industry knowledge of the disease and its causes, it was probable that a competent local doctor would have recognised HAVS, or the possibility of it, and obtained specialist advice. The court therefore accepted that constructive knowledge could be established through common knowledge and common sense without expert evidence about what a hypothetical doctor would have done.
5. Chadwick LJ added that the limitation issue necessarily proceeded on the basis that the claimant had HAVS caused by his employment, since that was the basis of the claim. The possible dispute about causation did not prevent the court from assessing what diagnosis an earlier consultation would probably have produced. No argument arose under section 33 because there was no basis for finding a later constructive-knowledge date.

• Court of Appeal (Civil Division): [2006] EWCA Civ 1630. Appeal dismissed.
• County court: On a preliminary issue, Mrs Recorder Stocken held that the claimant’s personal injury claim was time barred and declined relief under section 33 of the Limitation Act 1980.