Secretary of State for Trade and Industry v Mackie

For limitation purposes, a claimant has knowledge that an injury is attributable to the defendant’s conduct when the claimant knows there is a real possibility of that causal connection. A claimant need not know that the defendant was legally at fault. Later reassurance or advice that no viable claim exists does not remove that knowledge unless it actually displaces the claimant’s understanding through misleading or incorrect advice. Where the claimant’s state of mind remains confused, reasonable further enquiries may be required. The claim was therefore statute-barred.

James Mackie claimed damages for noise-induced hearing loss allegedly sustained during employment with British Coal Corporation between 1981 and 1993. Proceedings were issued in December 2005. The Secretary of State for Trade and Industry, responsible for BCC’s liabilities, pleaded limitation.

His Honour Judge Bullimore held that the claim was not statute-barred because Mackie did not have the necessary knowledge until 2004. He found that Mackie knew in 1992 that he had significant hearing loss, but not that it might be attributable to workplace noise. The Secretary of State appealed, arguing that material factual issues had not been resolved and that the statutory knowledge provisions had been misapplied. The central issue was when Mackie first knew that his hearing loss was attributable to his working conditions.

1. Appeal allowed; claim dismissed. The judge below had erred by leaving unresolved the circumstances of the 1992 hearing test, the instructions to Thompsons and the later withdrawal of the proposed claim. Those facts were material to applying the law.
2. On the evidence, Mackie had probably supplied the information for the May 1992 letter intimating a noise-induced hearing-loss claim, instructed Thompsons through a trade-union process, and attended the hearing test as part of an opportunity to obtain legal assistance and medical evidence. The test was unlikely to have been arranged by BCC.
3. Under sections 11 and 14 of the Limitation Act 1980, knowledge of attributability requires knowledge that there is a real possibility that the injury is causally related to the defendant’s acts or omissions. This principle was confirmed in Spargo v North Essex District Health Authority [1997] PIQR 235. Knowledge that the conduct constituted negligence or breach of duty was irrelevant.
4. Mackie knew before the 1992 test that noise could cause deafness and that his hearing difficulties might be due to workplace noise. Attending the test with a view to bringing a damages claim reinforced that knowledge. Later reassurance that he had no claim did not remove it.
5. Sniezek v Bundy (Letchworth) Ltd [2000] PIQR 213 was distinguishable and not relevant without a finding that Mackie had been misled or given incorrect advice which displaced his prior understanding. No such finding had been made.
6. Even if his prior assumption had been displaced, it was not reasonable for Mackie to make no further enquiries for ten years. By 1993 he knew of comparable claims involving approximately 10 dB hearing loss and should have clarified the significance of the figures and the earlier advice.
7. The claim issued in December 2005 was statute-barred. The judge’s indication that discretion under section 33 would not have been exercised was unchallenged.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and dismissed the claim as statute-barred.
• Doncaster County Court: on 3 November 2006, held that the claim was not statute-barred because the claimant lacked the necessary knowledge until 2004.