The Court of Appeal visited this issue yet again in Malone v Relyon Heating Engineering Ltd  EWCA Civ 904.
This was a noise-induced hearing loss claim arising out of exposure to noise for a period of 27 years with the same employer. There is nothing particularly noteworthy about the breach of duty arguments, causation or indeed damages (which were agreed). The main issue was about the exercise of the Court’s discretion to extend the primary limitation period under section 33 of the Limitation Act 1980.
Some background facts:
C was employed by D from 1977 until 2004 and exposed to noise from various tools. He was fixed with constructive knowledge of his cause of action for the purposes of sections 11 and 14 of the Limitation Act 1980 as of end of January 2001. He had started to notice some hearing loss in the 1990s but it was not until 2000 that he saw his GP about it and then saw an ENT surgeon in late January 2001 and was fitted with a hearing aid. He stopped working for D in 2004. D at that time was still trading. It went into administration though in 2006 and into liquidation in 2008. The letter of claim to D was sent in March 2009.The D company was finally dissolved in October 2010.
The claim was not issued until January 2011. In June 2011, D made a request to the liquidators for personnel and occupational health records and any other disclosure to be made but they were told that all documents had been destroyed.
Decision at first instance:
The Judge at first instance extended the primary limitation period under section 33 and allowed C’s claim for breach of duty and awarded damages. The Judge had got to that decision on limitation because she viewed the whole period employment as being causative of the injury (because of continuing exposure to noise), and the cause of action had accrued in 2004 when C ceased to be employed by D. She therefore focussed on the period of delay between 2007 (when the primary limitation period expired) and 2009 (when the letter of claim was sent to D and they could start their investigations). On that basis, there was little difference between the position D was in in 2009 and in 2007, and therefore little prejudice. She did comment that had the primary limitation period started sooner than 2004 and ended sooner than 2007, then the prejudice would have been greater to D.
D appealed the above decision.
The Court of Appeal:
It was wrong of the Judge at first instance to treat the cause of action as accruing in 2004. The constructive date of knowledge had been accepted by C as being the end of January 2001. In that case, the primary limitation period expired in January 2004. The delay to be looked at was therefore between 2004 and 2009. The Judge at first instance herself was right to acknowledge that this was a different position for D as it was still trading in 2004 and the company was not in trouble until 2006. The prejudice was considerable in those circumstances.
BUT, because this was a divisible injury (meaning that there could be apportionment between various periods), the Judge should have identified two separate periods for consideration.
1. Prior to 2001
The date of knowledge being January 2001 meant that a cause of action had accrued by that stage and therefore related to damage that had been caused to C’s hearing prior to 2001. This would have meant that the primary limitation period expired in 2004 and the delay to be considered was between 2004 and 2009.
2. Post 2001
There was then a continuing cause of action after 2001 until 2004, when C stopped working for D. It was implied that because there was ongoing noise exposure there must have been ongoing damage being caused to C’s hearing, even though there was no medical evidence to say to what extent. The delay to be considered was between 2007 and 2009, as the Judge did at first instance.
The CA confirmed that it was important to look at the delay in the round, even the pre-limitation delay.
In relation to the pre-2001 damage, there would be significant prejudice to D if the claim were allowed to proceed now. Had the claim been issued within the primary limitation period (up to January 2004), D’s position as to cogency and availability of evidence would have been starkly different because the D company was still trading in 2004. It was not appropriate to exercise the discretion under section 33 to dis-apply that primary limitation period.
As for the cause of action relating to the 2001 to 2004 injury to hearing, with the primary limitation period expiring in 2007, the CA decided that the delay that had occurred prior to that limitation period had to be considered. That meant that the first period of delay discussed above in relation to the pre-2001 injury was relevant. Too narrow a focus on the 2007 to 2009 delay was inappropriate in all the circumstances.
The CA went on to say that proportionality, in the context of a modest claim (following Adams v Bracknell Forest Borough Council  UKHL 29), was an important factor to take into account when considering the exercise of the discretion under section 33.
If the claim was allowed to proceed for the post-2001 injury then it would be a small proportion of the overall claim (3 years out of the 27 years of employment; so in this case it would been have been a small proportion of the overall value of damages of £3,375). Bearing in mind the delay that had been caused resulting in a difficulty in assessing the extent of any injury caused between 2001 and 2004, and the amount that would actually result in damages from that period, it was not proportionate to allow the claim to proceed and for the Court to exercise its discretion under section 33.
The appeal by D was allowed.