Last reviewed 20 August 2020

Barrister Robert Spicer examines some cases that provide guidance in this area.

The Limitation Act 1980 states, in general terms, that civil actions for compensation for personal injuries must be brought within three years from the date on which the cause of action accrued or, in certain circumstances, the date on which the injured person first knew that he or she had a claim.

Section 33 of the Act mitigates this rule. It states, in summary, that a court may allow a claim to proceed after three years having regard to any prejudice to the claimant or to the defendant. In exercising its discretion under s.33, the court must consider all the circumstances of the case including the length of, and the reasons for, the delay, and the extent to which the evidence in the case is likely to be less cogent than if the claim had been brought within the time limit.

Balance of prejudice

In the case of Pearce and Others v Secretary of State for Business, Energy and Industrial Strategy and Others (2018), the High Court gave guidance on the issue of the balance of prejudice in historic claims for compensation.

A group litigation was brought by a large number of former employees of British Coal, alleging that they had contracted various occupational diseases, including chronic bronchitis, caused by exposure to coke dust and fumes in the workplace.

The High Court dealt with a claim brought by the widow of Mr Nicholls. He was employed by British Coal at Nantgarw from 1968 to 1985. He died in 1997 and he knew of his injury in 1983. Breach of duty was admitted by British Coal. The only issue was that of limitation. The delay in the case was approximately 25 years. On behalf of the defendant, it was argued that the deceased was unable to give evidence about his symptoms and that hospital records had been destroyed eight years after his death.

The court made the following points.

  • The essence of the proper exercise of the s.33 discretion was a balance of prejudice. The burden was on the claimant to show that their prejudice would outweigh that of the defendant.

  • The burden on the claimant was not necessarily a heavy one. How heavy or easy it was for the claimant to discharge the burden should depend on the facts of the particular case.

  • The claimant had discharged the burden of showing that her prejudice would outweigh that of the defendant if the limitation period were not disapplied.

  • The passage of time had not significantly diminished the defendant's ability to fight the claim on liability or quantum.

  • It was more likely than not that Mr Nicholls had suffered from chronic bronchitis. His widow was awarded £15,583 damages.

Noise-induced industrial hearing loss

Another case related to this issue is Sayers v Lord Chelwood (deceased) and Lady Chelwood (2012).

The facts of the case, in outline, were that S was employed by LC as a forester and gardener from 1981 until 2000. During his employment, he was exposed to noisy work equipment. By 2000 he was suffering from tinnitus and hearing loss. He claimed that he had told LC about this before 1989.

In 2000 he started new employment. In 2002 his new employers gave him a health check. He was advised that he might be suffering from noise-induced industrial hearing loss. In 2005 he was referred to a hospital ENT department by his own doctor. He was examined and advised that no abnormality had been found and that he was suffering from age-related hearing loss. A review one year later referred to noise-related hearing loss and tinnitus. He was fitted with a digital hearing aid.

In October 2006 S instructed solicitors to claim against LC. A letter of claim was sent in 2008. Proceedings were started in 2009 and a claim form was served in 2009.

LC denied negligence. On their behalf, it was argued that the claim was time-barred. At a first hearing, the judge ruled that S’s date of knowledge, for limitation purposes, was December 2006 when he was first advised by his solicitors that he had a claim. He exercised his discretion under s.33 to allow the claim to proceed. LC appealed to the circuit judge, who ruled that the date of knowledge was 2002 and the claim was time-barred.

S appealed to the Court of Appeal. He accepted that his date of knowledge was 2002 but argued that the circuit judge should have exercised his discretion to allow the claim to proceed.

The Court of Appeal dismissed the appeal and made the following points.

  • Where a claimant proceeded out of time and asked the court to exercise its discretion under s.33, the burden was on the claimant to persuade the court that such a direction was appropriate.

  • Taking into account all the factors set out in s.33, S could not discharge this burden. The delay of four years made it substantially more difficult for the parties to adduce relevant evidence in relation to factual issues.

  • S had not acted promptly once he knew that he might have a claim in 2002.

  • LC were unable to trace who had insured them for the period of the claim. They were therefore exposed to personal liability and costs.

  • The prejudice to LC if the claim was allowed to proceed outweighed the prejudice to the claimant if it was not.

Firearms-related hearing loss

In the case of Sykes v Chief Constable of West Yorkshire Police (1997), S, a policeman, had worked as a firearms instructor from 1978 until 1983. During that time he was exposed to the noise of 1 million pistol shots and 300,000 shotgun rounds. Between 1979 and 1980 he became aware of a ringing in his ears. Although this became a source of constant discomfort, S was concerned about his promotion prospects and did not complain. He did not seek legal advice until January 1994. He started legal proceedings in January 1996. An application was made for a preliminary hearing on the question of limitation. The county court ruled as follows.

  • On the basis of medical evidence, the permanent ringing in the ears amounted to a significant injury which had been caused by work.

  • In relation to the delay in complaining to his employer, the judge concluded that it was reasonable for a career policeman not to put his job at risk. The application should be allowed to proceed.