Carr v Panel Products (Kimpton) Ltd

For personal injury claims, actual knowledge requires knowledge that the injury is significant, attributable to the alleged act or omission, and connected with the defendant. Awareness of an injury and a possible cause does not automatically establish attribution. Constructive knowledge may arise where reasonable medical advice would have revealed the relevant cause.

The discretion under Limitation Act 1980, section 33, is broad. It requires an overall balance of prejudice, with particular attention to the cogency of evidence and the fairness of trial. Post-limitation delay usually carries greater weight, although earlier delay may remain relevant. Proportionality may also inform the discretion.

The claimant brought a noise-induced hearing loss claim arising from employment with the respondent between 1974 and 1981. Proceedings were issued in 2013, more than 30 years after the employment ended. The County Court found that the claimant had actual knowledge of his significant, work-related injury by 2007 or 2008, or constructive knowledge by 2008 or 2009. It held the claim statute-barred and declined to disapply the limitation period under section 33 of the Limitation Act 1980.

The claimant appealed against the limitation decision and against an order that the costs of the hearing on his application for permission to appeal should be costs in the case. The central issues were the date of knowledge, the proper exercise of the section 33 discretion, and the procedure governing permission to appeal at first instance.

1. Both appeals were dismissed. McCombe LJ delivered the judgment, with which King LJ agreed.
2. Under section 11(4) and section 14 of the Limitation Act 1980, the court upheld the finding that the claimant had actual knowledge of a significant injury attributable to his employment by 2007 or 2008. The finding depended on the trial judge’s assessment of the claimant’s evidence and was open to him. The court also upheld the alternative finding of constructive knowledge. A reasonable consultation with a general practitioner, which the claimant accepted could readily have taken place, would have led him to pursue the cause of the hearing loss. The later disagreement between medical experts about its precise nature did not undermine that conclusion. The approach was consistent with Johnson v Ministry of Defence [2012] EWCA Civ 1505.
3. The discretion under section 33 is unfettered and requires consideration of all the circumstances. The statutory factors focus the court’s attention but do not prescribe equal weight for each factor. The essential exercise is an overall balance of prejudice. The claimant bears the burden of showing that his prejudice would outweigh the defendant’s prejudice, while the defendant bears the evidential burden of showing that delay has made its evidence less cogent. The period after expiry of the limitation period carries particular weight, but earlier delay may also be relevant. The availability of witnesses and documents, the prospects of a fair trial, the reasons for delay, promptness after knowledge, and the parties’ conduct must be evaluated together.
4. The judge was entitled to infer serious prejudice from the loss of machinery, records and witnesses, and from the need to rely heavily on the claimant’s recollection. The unexplained delays in obtaining advice and progressing the claim were relevant. The judge should have raised one point concerning the audiometry evidence before relying on it, but that error did not affect the overall decision. The Court of Appeal considered that the cumulative matters justified refusing relief under section 33. Proportionality would also have been material had the discretion needed to be exercised afresh, given the modest value of the claim and the likely further costs.
5. The first-instance procedure differs from the Court of Appeal procedure described in Jolly v Jay [20012] EWCA Civ 277. At first instance the successful party will ordinarily be heard on an application for permission to appeal. The district judge was therefore entitled to hear the respondent and to order that the hearing costs be costs in the case.

1. Court of Appeal (Civil Division): permission to appeal was granted by Underhill LJ. The appeals against the limitation decision and the costs order were dismissed.
2. County Court at Liverpool: District Judge Jenkinson dismissed the claim as statute-barred, declined to disapply the limitation period, and ordered costs accordingly.