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NIHL – out of time, again?

JC v Carillion Construction Contracts Ltd & Rhondda Cynon Taf County Borough Council [2017]

This was a claim for noise induced hearing loss ("NIHL") in which limitation was tried as a preliminary issue.

Facts & background

The Claimant was aged 67 when his Claim Form was issued on 8 January 2016. He brought proceedings against Carillion Construction Contracts Ltd ("Carillion") and Rhondda Cynon Taf County Borough Council ("the Council"), in relation to alleged exposure to excessive noise whilst he worked as a carpenter / joiner for Carillion between 1968/69 and 1970/71 and the Council’s predecessor Authority, Mountain Ash UDC, between 1970/71 and 1973/74. Dolmans represented the Council.

The Claimant’s HMRC schedule confirmed that he finished school in 1963 (aged 15) and his first employment was in 1965/66. He worked for 6 different employers over the following 9 years, admitting that he was noise exposed during most of these employments, but, for reasons unknown, only elected to bring proceedings against Carillion and the Council. It was even stranger that no employments were recorded between 1974/75 and 2003/04 and the Claimant’s Solicitors told us that he was working as a self-employed carpenter during this period. The Claimant worked for WKP from 2003/04 until retirement, but stated that he was provided with earplugs and so was not exposed to noise. 

Within the medical evidence that was served with the proceedings, the Claimant’s medical expert, MY, reported that the Claimant had a hearing loss of 50.6dB, which consisted of 16.6dB due to his age and 34.0dB due to NIHL. Hearing aids are routinely prescribed by the NHS for those with hearing losses of 25 to 30dB, so the Claimant’s hearing loss (whether taken as a whole or simply the NIHL component) was significant.

 

Both Defendants pleaded in their Defences that the claim was statute barred under the Limitation Act 1980. The alleged exposure (with either Carillion or the Council) occurred over 40 years before proceedings were issued. As readers will be aware, NIHL is a non-progressive condition, so the Claimant would have known about his hearing loss for a considerable time before proceedings were issued. In other words, the Claimant was aged 26 at the time when his alleged exposure to noise with Carillion and the Council ceased. He would have been a 26 year old with a hearing loss of at least 34.0dB.

 

The litigation

 

We (and the Solicitors representing Carillion) requested in our Directions Questionnaire and Proposed Directions that the issue of limitation be heard as a preliminary issue. The facts of the case clearly suggested that limitation was likely to be a contentious issue and we submitted that a preliminary hearing would avoid the significant costs of obtaining engineering evidence and medical evidence, as well as saving Court time. If the Claimant succeeded on the issue of limitation, the Defendants would probably settle the claim. The matter was transferred to the County Court at Merthyr Tydfil and "standard" Fast Track Directions were ordered. The Defendants, therefore, made a joint Application to set aside the Court’s Order.

Our Application reiterated that it was proportionate, both in terms of time and costs, for limitation to be heard as a preliminary hearing. The Application was not heard until several months later and was opposed by the Claimant. The hearing took place via telephone. Whilst the parties were waiting for the conference call operator to dial out to the Court, the Claimant’s Counsel mentioned an addendum report from Mr Y in which he had reduced the NIHL component from 34.0dB to 20.6dB. The Claimant argued that this evidence significantly weakened the Defendants’ position on limitation, but District Judge S, who had also not seen the report, was satisfied that the Defendants had properly identified that there was a triable issue on limitation and it was appropriate for the claim to be listed for a preliminary issue hearing. The Judge, therefore gave Directions, leading to a preliminary issue hearing before him on 11 January 2017.

 

The parties dealt with disclosure and exchange of witness evidence in accordance with the Directions. The disclosure provided by the Council (as well as Carillion) was extremely limited, but that was not surprising given over 40 years had passed since the Claimant’s employment and there had been several local government reorganisations in this period.

 

The Claimant’s Witness Statement was detailed and referred to his employment history and the particulars regarding his employment with Carillion and the Council. Interestingly, the Claimant admitted that between 1975/76 and 2013/14, he worked for WKP. He said that he was essentially self-employed as he had to sort out his own tax payments, but to all intents and purposes he was employed by them. The Claimant also stated that he was exposed to noise at WKP which emanated from electric drills and saws, and he was only provided with hearing protection during the his last few years of employment. This evidence had implications both in respect of apportionment (i.e. – the Claimant had worked in a noisy environment for over 35 years after leaving his employment with the Defendants) and limitation. Incidentally, the Claimant’s evidence was that he never really noticed he had a problem with his hearing until he suffered an accident at work in 2013 when he lost his balance and fell off a bench. In September 2013, an ENT Consultant confirmed that this was due to his poor hearing and the Claimant was advised that he needed hearing aids. The Consultant, who had heard about the Claimant’s employment history, also suggested he looked into making a claim for NIHL.

 

A Witness Statement was provided on behalf of Carillion by a solicitor in the claimant’s solicitors. The Council’s Insurance Manager also provided a Witness Statement. The Witness Statements contained evidence regarding the prejudice suffered by having to defend a claim regarding events from over 40 years ago. The Defendants had no records to confirm that they employed the Claimant, let alone the work he did. There was also no evidence as to the likely working conditions. There were no documents, for example training records or occupational health records, which dated back to the Claimant’s employment and the Claimant was unable to identify any living witnesses.

 

We served a Civil Evidence Act Notice in relation to a medical entry contained within the Claimant’s hospital records. On 30 September 2013, the Claimant’s treating ENT Consultant at Prince Charles Hospital, Mr L, transcribed the following:

 

"This middle aged gentleman who works on building sites presented with decreased hearing which he has had for years which was insidious in onset, gradually progressive …"

 

The Defendants also obtained a desktop report from AP, Consultant ENT Surgeon, to provide his views on the Claimant’s audiogram and the medical evidence of MY. He stated that if the Court accepted MY’s opinion as to the NIHL component of 20.6dB (and with the average individual would become aware of hearing loss when it reached 25dB), the Claimant would have noticed deafness at some stage in the mid-1970s / early 1980s.

 

Preliminary issue hearing

 

The hearing proceeded before District Judge S on 11 January 2017 in the County Court at Merthyr Tydfil. Each party was represented by Counsel.

 

The Claimant gave oral evidence and was subjected to a thorough cross-examination by Counsel for the Defendants. When giving evidence, the Claimant admitted that the compulsion to use hearing protection was implied by his main employer, WKP, in 2004 (in contrast to his Witness Statement). The Judge found, therefore, that the Claimant was aware of the purpose of hearing protection (i.e. – to protect his hearing from damage from noise) in 2004.

 

The Judge also placed reliance upon the medical entry from Mr L, dated 30 September 2013, and found that "years" had to be more than two. Therefore, for the purpose of finding the date of knowledge under section 14 of the Limitation Act 1980, the Judge found that it was at some stage after 2004, but before 2012. The Claim Form was received by the CCMCC on 29 December 2015 (issued on 8 January 2016) and 3 years before that was 29 December 2012. As such, based on his finding as to the date of knowledge, the primary limitation period had expired.

 

The Judge then turned to the question of whether it was equitable to allow the claim to proceed under section 33 of the Act. Applying the conditions, he made the following findings:

 

  • Delay – the delay was not all that long; maybe a year or two. However, there was no reason given for the delay. From the time the Claimant was aware that the injury was significantly attributable he did nothing. There was substantially more than a year between the Claimant having the necessary awareness and actually instructing solicitors, and even longer before proceedings were issued in December 2015. There was nearly 2 years between instructing solicitors and issuing proceedings. That, in itself, was an inexcusable delay. 

  • Cogency of evidence - the Defendants had been put in a position where it was almost impossible to defend the case. If time had started to run in 2010, that was 40 years since the Claimant started working for the First Defendant and over 35 years before he started working for the Second Defendant’s predecessor. Given the Claimant’s age of 68 (at trial) and the ages of his supervisors, it was even more difficult for the Defendants to identify witnesses and expect them to have any reliable recollection of events some 40 years before. The records had, quite rightly, been destroyed.

 

On a point of finance, the Claimant had signed a CFA so did not have a liability for his costs. The two employers sued were in a small minority of the total period for noise exposure, which meant that the Claimant’s claim would be reduced significantly, perhaps by approximately 80%. The loss to the Claimant, if his claim was worth £10,000 (maximum pleaded value), was approximately £2,000 from the Defendants. The financial prejudice to the Defendants was considerable. They would have to bear their own costs; in the region of £10,000 each. The Defendants’ prejudice was considerably greater than the Claimant’s prejudice if they could not avail themselves of the limitation defence.

 

  • Conduct – there was no criticism of the Defendants’ conduct.

  • Disability – there was no disability for the Claimant.

  • Prompt action / steps taken – as previously mentioned, there was a blameworthy delay in the Claimant instructing solicitors and also the proceedings being issued.

  

With all those factors in mind, District Judge S did not consider that discretion should be exercised in the Claimant’s favour. On that basis, he dismissed the claim. The claim was subject to Qualified One-Way Cost Shifting (QOCS) so the Defendants were, unfortunately, unable to recover their costs.

 

In his Judgment, the Judge was critical of the Claimant’s Solicitors for their delay in commencing proceedings and the Claimant’s failure to sue WKP. He commented that the Defendants pursued were responsible for 4 to 5 years of noise exposure out of approximately 50 years. WKP would have been excused responsibility in 2004 when the Claimant was provided with hearing protection, but before that they would have had the same responsibility. Had the Claimant pursued WKP, his claim against them may well have succeeded.

 

Comment

 

This case highlights the importance of running a limitation defence in the right circumstances and the potential cost savings that can be achieved. It would have been easy to accept the "standard" Directions which were issued by the Court, with the parties taking steps to obtain their own expert engineering and medical evidence, but the cost to each Defendant would have been considerable (estimated at £10,000 each against a claim worth approximately £2,000).

 

In this case, the Council and Carillion appreciated at an early stage that limitation was the best chance of defeating this claim and took the pro-active step of applying to set aside the Court’s Directions Order; a decision which was ultimately vindicated. The Council avoided the not insignificant cost of instructing an acoustic engineer and medical expert to prepare reports, potentially respond to questions from the Claimant, prepare Joint Statements and then attend trial. Court time was also saved. The preliminary issue hearing allowed the Court to consider limitation in isolation from issues of causation, liability, quantum and apportionment, which can often be complex and time consuming.

 

As in all NIHL claims, the Claimant’s pleadings, HMRC schedule, medical evidence and Witness Statement should be scrutinised for inconsistencies in relation to employment history and noise exposure that may harm the Claimant’s credibility. The Judge made specific reference to the Claimant’s failure to pursue WKP, an employer with whom he was exposed to noise for nearly 30 years, despite the Defendants having previously been told that he was self-employed during this period. This certainly played a part in the finding of prejudice to the Defendants and the Court’s reluctance to exercise discretion under section 33.