Johnson v Ministry of Defence and Hobourn Eaton Ltd

For constructive knowledge under section 14(3) of the Limitation Act 1980, the court applies an objective and fairly demanding standard. It asks whether a normal adult in the claimant’s position, possessing the claimant’s factual knowledge, could reasonably have been expected to seek appropriate expert advice.

A person with a significant injury is generally assumed to be sufficiently curious to seek advice. The degree of expected curiosity depends on the seriousness and manifestation of the condition. Where advice from a particular source, such as a general practitioner, should reasonably have been sought, constructive knowledge arises only if that advice would probably have disclosed the relevant attributability.

The appellant claimed damages from two former employers for deafness allegedly caused by workplace noise during the 1960s and 1970s. The Medway County Court dismissed the claim as statute-barred. It found that he had known by 2001 that his deafness might be attributable to noise and declined to exercise its discretion under section 33 of the Limitation Act 1980.

The appellant abandoned his challenge concerning section 33. The appeal therefore concerned whether he had actual or constructive knowledge of attributability under sections 11 and 14 before June 2007. All parties asked the Court of Appeal to determine constructive knowledge rather than remit that issue.

1. Appeal dismissed unanimously. The county court had erred in finding actual knowledge of attributability. Knowledge of significant deafness, past exposure to loud noise and the general capacity of noise to cause deafness did not itself establish awareness that this deafness might be noise-related. The judge had accepted that the possibility had not occurred to the appellant.

2. Constructive knowledge under section 14(3) of the Limitation Act 1980 is assessed objectively. Following Bracknell Forest Borough Council v Adams [2005] PIQR p 11, the question is whether a normal adult in the claimant’s position, possessing the claimant’s factual knowledge, could reasonably have been expected to seek expert advice. The inquiry is not whether the claimant’s inaction was subjectively reasonable or merely not unreasonable.

3. A person aware of a significant injury is generally assumed to be sufficiently curious to seek appropriate advice. That assumption may be displaced where a reasonable person would lack curiosity, including where a condition has existed from birth or childhood. Expected curiosity depends upon the seriousness of the condition and how it manifested itself. The applicable standard nevertheless remains fairly demanding.

4. Where a reasonable person should have consulted a particular source, the court must consider what advice that source would probably have given. If an appropriate general practitioner would not have disclosed the relevant possibility, a claimant who could not reasonably have been expected to consult a specialist would not thereby acquire constructive knowledge.

5. A reasonable person experiencing significant deafness at 61 would have consulted a general practitioner about its cause, despite its gradual onset and the absence of any thought of litigation. Such consultation would probably have led to enquiry about the appellant’s employment and disclosure of possible noise-induced deafness. Allowing about one year for reflection, constructive knowledge arose by the end of 2002. The primary limitation period expired by the end of 2005, before proceedings began in 2010.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The finding of actual knowledge was erroneous, but the claim remained statute-barred because constructive knowledge arose by the end of 2002.
2. Medway County Court: HHJ Scarratt dismissed the personal injury claim on 30 November 2011. He found knowledge by 2001 and declined to exercise the discretion under section 33 of the Limitation Act 1980.