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White v EON and others

Court of Appeal, Civil Division

Tuckey, Jacob LJJ and Sir William Aldous26 November 2008

Limitation of action Personal injury claim Claimant's knowledge Date of claimant's knowledge that injury
was significant Date on which claimant first had knowledge that injury attributable to third defendant's act or
omission Judge finding claimant's action statute-barred Whether judge erring Limitation Act 1980, ss
11, 14, 33.

Limitation of action Personal injury claim. Court of Appeal, Civil Division: The judge had been entitled to
find that claimant's claim for personal injuries suffered during the course of his employment had been statute
barred by virtue of s 11 and 14 of the Limitation Act 1980.

The claimant was employed by the three defendants as a lightning conductor fitter from 1962 to 1996. In 2006,
the claimant issued proceedings against the defendants claiming damages for 'vibration finger' caused by exposure
to excessive levels of vibration during the course of his employment. The first and third defendants raised
limitation points. The claim between the claimant and the first defendant was settled. The issue to be determined
was the time at which the claimant had had knowledge of his injury. In particular, the judge considered the issue
of reasonableness under s 14 of the Limitation Act 1980, namely when it would have been reasonable for the
claimant to consider his injury was sufficiently serious to justify his instituting proceedings for damages against
the third defendant. The claimant's evidence was to the effect that, in the 1990s, he had mentioned his symptoms
to his GP who had said that they could have been down to poor circulation. The claimant stated that the symptoms
got worse in 1996 when he left the employment of the third defendant to become a taxi driver. The claimant
contended that his date of knowledge started in 2003 when he saw an advertisement describing his symptoms. The
judge did not accept the claimant's evidence that his symptoms got worse after 1996. He further found that there
had been a combination of significant symptoms in the middle of the 1990s and that if he had reported to those
symptoms to his GP in detail it would have resulted in an investigation and review of the nature and condition of
the injury and it cause. On that basis, the judge concluded that the claimant had had constructive knowledge of his
injury in 1996 when he left the employment of the third defendant and following that it was reasonable to have
expected him to seek medical advice. The judge duly found that the claim was statute barred by reason of s 11 and
14 of the Act. The judge also declined to exercise his discretion under s 33 of the Act. The claimant appealed
against that decision.
He submitted that the judge had applied too stringent a test when considering the issue of when it would be have
been reasonable to expect him (the claimant) to seek medical advice.

The appeal would be dismissed.

In the instant case, the claimant's submission amounted to saying that the judge had set too high a standard of what
was reasonable, but it was for the judge to say what was reasonable. His finding was a finding of fact which was
had been open to him on the evidence he had heard.

Fiona Ashworth (instructed by BBH Solicitors, Cheshire) for the claimant.

Jayne Adams (instruced by Berrymans Lace Mawer, Manchester) for the third defendant.

Marie-Therese Groarke Barrister.

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All England Reporter > 2008 > November > White v EON and others - [2008] All ER (D) 263 (Nov)
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