Furniss v Firth Brown Tools Ltd

For a limitation defence, the defendant must establish the claimant’s date of knowledge of a significant injury, its attribution to the alleged wrongdoing and the defendant’s identity. The significance of an injury is assessed objectively by asking whether an ordinary reasonable person would have considered it sufficiently serious to justify proceedings. Awareness of a minor inconvenience does not automatically amount to knowledge of a significant injury, even where the claimant has privately speculated about its cause. Where symptoms have competing possible causes, the court must address each statutory element separately. If the evidence does not establish when the injury became significant, the defendant has not discharged the burden of proving the limitation defence.

The appellant claimed damages for noise-induced hearing loss against two former employers. The claim was issued on 3 June 2006. His employment with the respondent ended in about 1981 or 1982, and his later employment with Barlows Shopfitters Ltd ended in 1998.

On a preliminary issue, HH Judge Swanson held in the Sheffield County Court on 7 July 2007 that the claim was out of time under the Limitation Act 1980 and declined to exercise the section 33 discretion. Barlows settled shortly before the appeal, which proceeded against the respondent alone. The central issue was whether the evidence established that, before 3 June 2003, the appellant knew or ought reasonably to have known that he had a significant injury attributable to workplace noise.

Disposition. The appeal was allowed unanimously. Lady Justice Smith gave the principal judgment; Lord Justice Laws agreed, and Lord Justice Buxton agreed while emphasising the need for trial judges to address every element of section 14.

1. Under sections 11 and 14 of the Limitation Act 1980, the respondent bore the burden of establishing the relevant date of knowledge. The inquiry required findings as to significance, attribution and identity. Knowledge that conduct amounted in law to negligence was irrelevant.
2. The judge had found that the appellant knew about the possibility of noise-related hearing injury from the late 1960s, had tinnitus by 1998 and had noticed hearing loss in 1996 or 1997. Those findings did not resolve the separate question required by section 14(2): when the hearing loss attributable to the alleged workplace exposure had become sufficiently serious that a reasonable person would have considered proceedings justified.
3. The significance test is objective and is applied by reference to the facts known to the claimant. Minor inconvenience may naturally be put aside, with or without a private explanation for the symptoms. A claimant is not automatically fixed with knowledge that would have been obtained by immediately seeking expert advice merely because some hearing difficulty was apparent.
4. The case involved competing possible causes, including natural deterioration, ear wax and workplace noise. That made it particularly important to identify when disability attributable to the alleged negligence had reached the statutory level of significance. The trial judge had not treated that as a separate issue, and the evidence did not compel a finding that the appellant knew or ought reasonably to have discovered by 1998 that the injury was significant.
5. Since the evidence was insufficient and the respondent had not discharged its burden, the defence under sections 11 and 14 failed. It was unnecessary to decide the alternative section 33 issue. The court nevertheless observed that reliance on prejudice from destroyed documents was open to criticism where the documents would have been unavailable even if proceedings had been brought promptly.

• Court of Appeal (Civil Division): On 12 March 2008 the court allowed the appeal against the limitation ruling.
• Sheffield County Court: HH Judge Swanson held on 7 July 2007 that the claim was out of time under sections 11 and 14 of the Limitation Act 1980 and declined to allow it to proceed under section 33. The action was dismissed. Permission to appeal was given by Sedley LJ.
• Shortly before the appeal, the claim against Barlows Shopfitters Ltd was settled. The appeal therefore continued only against Firth Brown Tools Ltd.