Malone v Relyon Heating Engineering Ltd

Noise-induced hearing loss is a divisible injury. Where exposure continues after the claimant has knowledge of significant injury, later damage does not postpone or suspend limitation for earlier damage. Separate limitation periods must be considered for damage sustained in different periods.

Under section 33 of the Limitation Act 1980, the court must assess each period separately while considering all the circumstances. It must weigh the claimant’s prejudice against the defendant’s forensic prejudice, including delay after knowledge, loss of evidence, and the proportionality of allowing a modest claim to proceed. The remedy is exceptional.

The claimant brought proceedings for noise-induced hearing loss and tinnitus arising from 27 years’ employment with the defendant. The claim was issued in January 2011. He accepted that he had constructive knowledge of significant injury by January 2001, so the ordinary limitation period had expired.

The trial judge treated the continuing exposure and subsequent damage as producing one limitation period ending in 2007. She exercised the discretion under section 33 of the Limitation Act 1980 and allowed the claim, awarding £3,375 after apportionment. The defendant appealed, arguing that hearing loss was divisible and that limitation for pre-2001 damage had expired in 2004. The central issues were whether separate limitation periods applied and whether the section 33 discretion should be re-exercised.

1. Appeal allowed. The trial judge had identified one limitation period for the whole employment and had failed to reflect the divisible nature of noise-induced hearing loss. Apportionment was possible and appropriate.
2. For damage sustained before the claimant’s constructive knowledge in January 2001, the relevant limitation period expired in 2004. For additional damage sustained between 2001 and 2004, the relevant period expired in 2007. Later damage did not postpone limitation for the earlier injury.
3. Under section 33 of the Limitation Act 1980, the court had to assess the two periods separately while considering the circumstances of the case as a whole. Delay before the limitation clock began was relevant but had to be given appropriate lesser weight. Once the clock began, delay had to be considered from the claimant’s knowledge, rather than only from expiry of the limitation period.
4. For the pre-2001 injury, the delay, loss of records and unavailability of witnesses created very considerable forensic prejudice. That prejudice outweighed the claimant’s prejudice, despite some delay by the defendant’s insurers after notification.
5. The same overall circumstances, the difficulty of quantifying post-2001 damage and the very modest value of that part of the claim meant that it was also inequitable to allow the post-2001 claim to proceed. The section 33 discretion was therefore re-exercised in favour of the defendant.

• Court of Appeal (Civil Division) — [2014] EWCA Civ 904: appeal allowed. The court re-exercised the section 33 discretion and refused to allow either the pre-2001 or post-2001 parts of the claim to proceed.
• Luton County Court — the claim was allowed to proceed under section 33 and £3,375 was awarded after apportionment.