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Law Bulletin - April 2008

Limitation: Judge needs to decide whether injury is “significant”

The claimant was exposed to excessive noise with the defendants from 1976 to 1982. He was never provided with hearing protection. After 1995, he was not exposed to loud noise. The claimant said that he went to see his doctor to report deterioration in his hearing and was told that it was due to a build up of wax. He had a medical examination in 2004, which showed that there was hearing loss and tinnitus that, according to a consultant, were probably caused by exposure to loud noise. He issued proceedings on the 3 June 2006.

In cross examination, he agreed that his first problems were that he could not hear the telephone and needed to have the television sound turned up and that he had these problems from around 1996 but said that he thought they were due to ear wax, and that he thought that the tinnitus was hereditary.

The Judge held that he knew around 1996, and well before 1998, that he had a hearing loss independent of the wax and that he had enough knowledge of the possibility of noise affecting hearing for him to have associated that with his work. The Judge found that he was barred from bringing his claim.

The claimant appealed on the grounds that the finding that he knew around 1996 that he had hearing loss independent of wax was unsupported by evidence; and that the only evidence on the question of seriousness for the purposes of Section 14 of the Act was that, when the symptoms first began, they were pretty insignificant.

The Court of Appeal held that it was clear that the Judge had not dealt with the question of when the claimant knew or ought to have known that his injury was significant as defined by Section 14 (2). If the Judge had dealt with that question, he would not have been bound to find that by 1998 he knew or ought to have known that his hearing loss was significant. There was little evidence to support the proposition. The appeal succeeded.

Furniss -v- Firth Brown Tools Limited (2008) EWCA Civ 182.