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Former dockyard worker loses appeal for deafness claim after failing to consult his GP

Joseph Johnson, a former dockyard worker, has had his claim for noise induced deafness dismissed on the basis that he is out of time to claim.

Mr Johnson worked at Chatham Dockyard in the 1960s and 70s. During this time he was exposed to very loud noise from use of percussive tools. He brought claims against two of his former employers alleging that they had negligently exposed him to noise which caused his deafness. He claimed that he was not aware that his deafness was related to the noise which he was exposed to until he consulted a specialist in 2009. Throughout the course of his case however he accepted that he had ‘actual knowledge’ that he was suffering from deafness at the age 61 in 2001.

His case was initially dismissed on the grounds that limitation ran from 2001 by Judge Scarratt at Medway County Court. It was then heard on appeal by Lady Justice Smith, Lord Justice Etherton and Lady Justice Hallett. Lady Justice Smith held that although his condition developed over a period time and it was reasonable to say that he would not have attributed it to his noisy employment when he had been away from the docks for around 20 years he ought to have consulted his GP earlier and would have been advised in around 2001 - 2002 that it was noise induced deafness. She concluded that ‘a reasonable man in the 21st Century would be curious about the onset of deafness at the relatively early age of 61 and would wish to find out what was causing it…in my view a reasonable man would simply want an explanation for his condition and possibly also to discover whether there was any medical treatment which would improve his position.’

She ultimately ruled that Mr Johnson should have consulted his GP by or about the end of 2002 and by about the end of the year should be deemed to have had knowledge that his deafness may be as a result of his exposure to noise.

This case was decided in England under s33 of the Limitation Act 1980 however it would be considered by courts in Scotland if a similar case were to be brought under the Prescription and Limitation (Scotland) Act 1973. This  states at s17 an action for personal injuries must be brought with three years of the date on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts (i)that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;  (ii)that the injuries were attributable in whole or in part to an act or omission; and (iii)that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

This case serves as a reminder that all cases must be reported and investigated as soon as symptoms begin to ensure that cases which would otherwise be successful do not fail on the basis that they are brought out of time. 

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