White v EON & Ors

Constructive knowledge for limitation purposes may arise when, in light of a significant combination of symptoms, it was objectively reasonable to expect the claimant to seek specific medical advice. The claimant need not have recognised the causal link actually. This is a fact-sensitive finding for the trial judge, which an appellate court should not readily disturb where supported by the evidence. The latest date may be fixed by the time significant symptoms had developed, even if they remained stable thereafter. Medical records and the claimant’s account to an expert may assist in deciding whether advice was sought.

The claimant brought personal injury claims against three former employers for Vibration White Finger and Carpal Tunnel Syndrome arising from exposure to vibrating tools. Proceedings were issued on 19 July 2006. The first defendant settled, and limitation was tried as a preliminary issue in the Nottingham County Court.

HHJ Inglis held that the claim against the third defendant was time-barred because the claimant had constructive knowledge by the end of 1996. He also refused to disapply the limitation period under section 33 of the Limitation Act 1980, but permission to appeal that decision was refused. The appeal concerned whether the judge had applied too stringent a test and had given insufficient weight to the claimant’s evidence about consultations with his general practitioner. The central issue was whether, by the end of 1996, it was reasonable to expect the claimant to seek specific medical advice about his symptoms.

1. Appeal dismissed. Lord Justice Tuckey gave the judgment, with Lord Justice Jacob and Sir William Aldous agreeing.
2. Under sections 14(1) and 14(3) of the Limitation Act 1980, the relevant limitation period was three years from accrual or the claimant’s date of knowledge, whichever was later. The claimant accepted that his injury was significant. The issue was whether he had constructive knowledge that it was attributable to negligence or breach of duty.
3. The judge asked the correct question: whether, having regard to the symptoms experienced by the claimant, it was reasonable to expect him to seek specific medical advice. That approach was based on Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76. The complaint that the judge had applied too stringent a test amounted to disagreement with his assessment of reasonableness.
4. The finding that advice should reasonably have been sought by the end of 1996 was open to the judge on the evidence. By then there was a significant combination of symptoms, including a significant sensorineural component and difficulty with fine finger movements. The symptoms remained stable for the following seven years. Medical advice would, on the judge’s findings, have revealed the nature of the condition and its cause within months.
5. The judge had also dealt satisfactorily with the evidence concerning the claimant’s general practitioner. The absence of relevant entries in the extensive medical notes and the claimant’s account to Mr Wilson that he had not sought medical advice undermined the contrary evidence.
6. The refusal to disapply limitation under section 33 was not in issue because permission to appeal that aspect had been refused. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against the finding that the claim was time-barred.
• Nottingham County Court: HHJ Inglis found constructive knowledge by the end of 1996 and refused to disapply the limitation period under section 33 of the Limitation Act 1980. Permission to appeal that refusal was denied.