Howard Platt –v- BRB (Residuary) Limited  EWCA Civ 1401
On 15th October 2014, the Court of Appeal had cause to review the manner in which a claimant might find a claim statute barred by reason of constructive knowledge.
Mr. Platt, a 76 year old man who had worked for British Rail in a very noisy environment between 1953 and 1988 (save for a two year break in the RAF) suffered from noise induced hearing loss. In a medical report prepared to support the claim, Mr. Hisham Zeitoun, an ENT Surgeon, had diagnosed 37.4 dB of hearing loss out of which 6.2 dB was attributed to noise and 31.2 dB to the effects of ageing.
It was common ground that Mr. Platt had suffered problems with his ears for many years and his medical records revealed attendances on 12 separate occasions between 1982 and 2011. The most significant attendance was in 1997 when he complained to his GP about tinnitus and hearing loss in his right ear and was referred to an ENT registrar. On that occasion, he was asked whether he had worked in a noisy environment and he replied that he had, but he did not ask whether his problems were caused by exposure to noise and his doctors did not volunteer that information.
At trial, HHJ Halbert found in favour of the Claimant and decided that he did not have knowledge of the attributability of his condition until less than 3 years before he commenced proceedings on the basis that, “to afflict a man who has consulted the medical profession on 12 occasions with constructive knowledge because he did not specifically question their own judgment of what they were telling him is too harsh a test”. The Defendant appealed.
Section 14(3) of the Limitation Act 1980 provides that,
“For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –
- from facts observable or ascertainable by him; or
- from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice”.
On appeal, Vos LJ held that HHJ Halbert had fallen into error because it was reasonable to expect someone in the Claimant’s position to seek an explanation of the cause of his symptoms. “What is challenged, however, is the determination that it was not reasonable to expect a reasonable person in Mr. Platt’s position to ask Mr. Matthews whether the history of noise exposure which they had discussed (and are mentioned in Mr Matthew’s letter) caused or contributed to the symptoms with which Mr. Platt presented. I cannot see how it could be anything other than reasonable to expect Mr. Platt to have done so…
Neither the fact that Mr. Platt had been retired 9 years, nor that he had had multiple ear and hearing problems over the previous years, suggests to me that the circumstances made it unreasonable to expect him to be curious about the cause of these unpleasant conditions. It was a natural and appropriate question to ask. The purpose of section 14(3) of the 1980 Act is not to protect those who do not act reasonably in their own interests to obtain and act upon expert advice. That is made clear from the proviso”.
For those wishing to read the full report here is a link: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1401.html
- If acting for a claimant it is important to take a full history in order to determine whether they are likely to be at a significant risk on limitation.
- In order to assess the situation properly, the claimant’s medical records must be reviewed and questions asked about any attendances with hearing complaints.
- When acting for the defendant, careful consideration of the medical records is key to determining whether a limitation defence might properly be advanced.
- If a claimant has been to the doctor and asked the appropriate questions about the cause of his/her symptoms, but was given the wrong advice then he/she should not be fixed with constructive knowledge see Johnson v Ministry of Defence  EWCA Civ 1505 at paragraph 30.