Medical records and credibility of witness evidence are claimant’s downfall at NIHL limitation trial

The Judge concluded that the claimant had brought his claim outside of the limitation period and that it would be prejudicial to the defendant if the claim was allowed to proceed.

Background

The claimant was employed by the defendant as a machine setter/fitter from 1970 to 1977. He subsequently pursued a claim against the defendant for Noise Induced Hearing Loss.

He issued his claim in 2021 pleading his date of knowledge was within the three-year limitation period. Alternatively, the claimant sought discretion under section 33 of the Limitation Act 1980.

Medical records

Upon our instruction we obtained the claimant’s medical records. The records were extensive but after a thorough review we noted that the claimant had visited his GP in November 2008 with reports of tinnitus. At the appointment the claimant’s employment history was seemingly discussed and we concluded this was because the medical expert believed noise exposure could be the reason for his hearing difficulties. Additional entries showed the claimant was investigated further (including by MRI scan and Pure Tone Audiogram). In February 2009 he was diagnosed with mild to moderate hearing loss and tinnitus.

As a result of the information in the medical records we argued that the claimant’s clear date of knowledge was 2008 (or 2009 latest) and he should therefore have issued his claim by 2011/12. The claimant was invited to discontinue his claim on the basis that it was statute barred. Despite the pressure we applied, the claimant argued his date of knowledge was not 2008 but rather 2019 when he was contacted by a marketing company. In any event, he submitted that the defendant was not prejudiced and section 33 discretion would be granted by the court.

Limitation trial

Given the issues in dispute, the matter proceeded to a limitation trial. Although on examination, the claimant came across as a credible witness who was trying to assist the court, there were problems during cross-examination. It appeared the claimant was trying to interpret his own evidence. When challenged by counsel and the Judge he admitted that parts of his statement were not his own words. He also said that when he spoke with his legal representative surrounding some aspects of his statement, the handler could also not explain what those parts of the statement actually meant. Unsurprisingly, the Judge was critical of the claimant’s solicitors in this respect. When dealing with the issues in judgment the Judge considered it likely that the claimant had been pressured and encouraged to retain certain comments in his statement. As a consequence, the Judge held that no weight could be given to the claimant’s statement.

Regarding the attendances with his GP in 2008, the claimant was unable to recall in accurate detail his ENT referral, nor that was he diagnosed with mild to moderate hearing loss. During cross-examination the claimant accepted it was probable that the ENT consultant and his GP had told him about his hearing loss and that it was significant at the time.

This evidence supported our position that he had known about his hearing loss in 2008 and therefore his claim should have been issued by 2011.

We argued that section 33 discretion should not be granted since there had been a number of ownership changes at the defendant and documents relevant to the defence of the claim would have been lost.

Counsel for the claimant did not really address this issue. He instead maintained the claimant’s position in respect of the pleaded date of knowledge and stated it was speculative which documents and witnesses would have been available if the claim had been brought between 2008 and 2011.

Judgment

The Judge was satisfied that the claimant had a significant hearing loss in 2008 and that the ENT consultant and GP would have discussed the relevant test results with him in 2008/09. The claimant’s date of knowledge was therefore November 2008, thus limitation expired in November 2011.

The reason given for the delay was that the claimant had decided not to seek legal advice until a marketing exercise in 2019. This was not deemed a reasonable explanation by the Judge. The Judge also accepted that due to the various takeovers, the defendant would have likely had more documents available had the claim had been brought earlier. The Judge concluded that the balance of prejudice fell in the defendant’s favour and that there would be significant prejudice to the defendant in allowing the claimant to continue with his claim outside of the limitation period. The Judge therefore did not allow s33 discretion and the claimant’s claim was dismissed.

Savings

Shortly before the limitation trial the claimant made a Part 36 offer of £5,000. Taking into account general damages, special damages and costs we calculate savings were at least £20,000, although this does not include the further defence costs that would have accrued had the claim proceeded to a full trial on all issues.

What can we learn

• The importance of scrutinising a claimant’s medical records cannot be underestimated. In this case the relevant extracts from 2008 and 2009 proved vital in successfully defending the claim.
• It is known that some claimant solicitors outsource the drafting of witness statements to an eternal company. The claimant’s representatives in this claim are one such firm which explained why the handler could not clarify certain aspects of the claimant’s witness statement. Extra care should be taken when considering statements. 
• The claimant’s representatives are regular opponents on Noise Induced Hearing Loss claims. It is hoped that they may now employ a more selective approach and properly consider limitation before embarking on litigation. In this case they have had their fingers burned. The claimant has failed to recover damages and the claimant’s lawyers will not get paid for the considerable work undertaken. 
• This case illustrates that limitation remains a credible line of defence in NIHL cases where there is clear evidence on date of knowledge and arguments on prejudice.