Time Limits apply to claims for industrial hearing loss, just as they do for any other personal injury claim. These time limits are different (shorter) than for other legal claims including contract cases or professional negligence cases.
These time limits are set down by the Limitation Act 1980.
Broadly speaking, a claim for personal injury must be brought to the Court's attention through the issuing of a claim form within 3 years of the cause of action arising.
Section 11 of the Limitation Act 1980 applies to all personal injury claims. It states that,
“…the period applicable is 3 years from;
- The date on which the cause of action accrued (ie the accident date)
- The date of knowledge (if later) of the person injured
In simple accident cases, the cause of action is the accident itself, so it is easy to calculate the 3 year limitation period. It will simply run from the date of the accident.
However, in industrial hearing loss cases (as in all industrial disease cases) the 3 year time limit is more uncertain.
Date of Knowledge
The date of knowledge is defined in section 14(1) of the Limitation Act. It is when the Claimant knew;
- The injury in question was “significant”
- The injury was attributable (in whole or in part) to the employment
- The identity of the potential defendant
The claimant's date of knowledge begins when he knows (or ought to know) that he has an injury which can be related to his work and is more than purely trivial. This date is often far from certain, because industrial deafness can come on slowly and often people mistakenly put their hearing loss down to the effects of age rather than work.
Types of Knowledge
There are 2 types of knowledge; actual knowledge and constructive knowledge.
Actual knowledge is simply a question of fact. It is not necessary for the injured person to be certain that there is a link with work – they just need to have a reasonable belief that there is a link between the work and the injury.
The Court will consider documents like the Occupational Health Records, personnel records and GP records to see if there is any evidence that the Claimant was aware of the link between the injury and work. Previous claims (whether successful or not) and applications for benefits may also prove useful.
Constructive Knowledge is usually more difficult to be clear about and this is why specialist hearing loss solicitors should always be instructed. It is not just what someone actually knows, it is was a court believes that they should reasonably have known. It will come down to a question of reasonableness and there can be significant variations about what is reasonable between different Judges. The Court will look at things like:
- entries in the GP or Occupational Health Records
- evidence of previous claims or benefits applications where industrial hearing loss was relevant
- information about protective equipment and what the claimant thought about why this was needed
- claims made my colleagues in the same workplace
- the Claimant’s own account of when he related his symptoms to work
- any applications for benefits and what was said on the form
It is important to note that simply not knowing that you can make a claim is irrelevant. The Court expects a person to be curious about any conditions that they have.
Section 14(2) Limitation Act 1980 says that an injury is significant if it “is serious enough to justify instigating proceedings against a Defendant who does not dispute liability and was able to satisfy a Judgement”.
Generally if someone has reported their hearing loss to a GP or Occupational Health, it is likely to be considered as significant.
Attributable to Employment
All that is needed is that the injured person knows in general terms that their hearing loss is related to unsafe working conditions.
They do not need to know precisely what those conditions were or which noise induced hearing loss regulations apply. There just has to be a reasonable understanding that the hearing loss could be related to work. Signs in the workplace, relevant training and use of personal protective equipment are all factors which make it more likely that an injured person should attribute their hearing loss to work.
Discretion of the Court to extend Time Limits
In the event that the Court concludes that the claim has been brought outside the 3 year limitation period, there is a discretion which can be utilised under s33 Limitation Act 1980, which allows the Court to disapply the limitation period if there are good reasons for doing so and neither side is prejudiced.
The Court will use this discretion only when it is equitable in the circumstances.
When considering whether to use its discretion the Court will consider a number of factors including:
- The length of and the reasons for the delay by the Claimant
- The effect of the delay on the cogency and availability of the evidence
- The conduct of the Defendant after the claim was started – for example responding to requests for documents or inspection by the Claimant
- The speed of action by the Claimant once they related their noise induced hearing loss to their work
- The steps taken by the Claimant to obtain legal advice
Time Limits conclusion
It is vital that anybody who thinks that they might have any form of industrial hearing loss or tinnitus should seek legal advice from a specialist personal injury solicitor as a matter of urgency, because the time limits are strictly applied and it is important to give the solicitor as much time as possible to deal with the evidence and the claim.