Law firm DWF has successfully challenged an industrial noise induced hearing loss (NIHL) claim on behalf of the Department for Transport against a former railway employee who claimed to have impaired hearing after working at the British Rail Engineering works.

The Court of Appeal handed down its judgement in the case Howard Platt v BRB (Residuary) Ltd rejecting the claim on the basis the claimant had ‘constructive knowledge considerably earlier than the three year period of bringing proceedings against his employer’. The Court of Appeal re-examined key prior cases and the operation of the Limitation Act 1980.

The Court of Appeal findings were that the issue of constructive knowledge should be determined by reference to the knowledge which a person might reasonably be expected to acquire, which in turn must depend on all the circumstances of the case. In this case, that meant that it was reasonable to expect Mr Platt to have made further enquiries once the issue of noise exposure had been raised.

Helen Elsworth, Partner in the Occupational Health insurance team at DWF, who acted for the Department for Transport which inherited the liabilities for BRB (Residuary) Ltd after it was abolished on 30 September 2013, said: “Industrial disease claims for NIHL are rapidly increasing and this judgement could assist in deterring unmeritorious claims in the future. This area of disease litigation is a constant source of controversy despite the growing body of case law giving reasonably clear and robust guidance on how Sections 11(4) and Section 14(3) of the Limitation Act 1980 should be applied.

"Those defending NIHL claims are often faced with GP notes littered with references to tinnitus and hearing problems over many years before a claim is brought. The burden is on the claimant to show he had neither actual knowledge or ought not to be imputed with constructive knowledge and the threshold is reasonably high, as is made clear throughout this judgement.”

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