Case - Kew v. Bettamix & ors

[2006] EWCA Civ 1535, Court of Appeal -
The appellant employers, Bettamix appealed against a decision to disapply the primary limitation period and allow the action pursued by the respondent, Kew, to proceed. Kew had claimed against Bettamix in respect of his exposure to vibrating equipment during his employment with them. In the early 1990s Kew had experienced numbness in his fingers but attributed it to his age. By the late 1990s, Kew appreciated that his age might not have been the only cause. Following a routine occupational health care assessment in March 2000, Kew's doctor informed him that his symptoms might be attributable to exposure to vibration at work and in July 2000 it was confirmed that Kew was suffering from hand arm vibration syndrome.
 
The doctor recommended an annual review and intimated that recommendation to Bettamix. Kew was not subsequently called for a review. Kew issued proceedings in April 2004. At a preliminary issues hearing the judge identified July 2000 as being the relevant date of knowledge for the purposes of the Limitation Act 1980 s.11 and found that the primary limitation period had expired, but exercised her discretion to disapply it pursuant to s.33 of the Act. The judge also required Bettamix to pay all the costs of the preliminary issues notwithstanding their success on primary limitation.

HELD: (1) An injured person had to have sufficient knowledge to make it reasonable for him to acquire further knowledge of the link between his injury and his prior working conditions. In the early 1990s, there was no basis for suggesting that Kew had considered, or should have considered, that his injury was not the product of some ageing process. Further, in the late 1990s, there was no evidence that Kew had any idea of the link between the injury he was suffering and his working conditions. His concession that he knew at that time that his difficulties were not just caused by age provided no evidence as to what the cause might have been. Kew did not have the requisite knowledge at that time. However, constructive knowledge dated from March 29, 2000, namely, the date upon which Kew's doctor had informed him that he had some symptoms which might be attributable to exposure to vibration at work. Although Kew was not told expressly at that time of the causative link, the doctor's conclusions demonstrated that there was a real possibility that his working conditions had caused the symptoms and, for a reasonable man, required investigation. (2) The discretion exercised by the judge in relation to s.33 had been open to her on the facts of the case. The judge had been entitled to find that Bettamix would not be unduly prejudiced by the delay if the action were to proceed, that Bettamix's conduct in failing to recall Kew for a medical review was a relevant factor and that Kew's delay had not been dilatory. Further, it was open to the court to disapply the limitation period if it was equitable to do so, by taking account of the financial value of the claim to the claimant and the potential cost to the defendant's organisation, Robinson v St Helens MBC (2002) EWCA Civ 1099 , (2002) ELR 681, McGhie v British Telecommunications Plc (2005) EWCA Civ 48 and Adams considered. (3) There was no reason why Bettamix should have had to bear the costs of the hearing of the preliminary issues. The hearing largely concerned the date of knowledge issue and the identity of the employers, both of which Kew did not succeed in. Kew's argument based on s.11 of the 1980 Act could not succeed and the judge had failed to appropriately balance that factor in the scale.
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