I have been asked by a number of people if I can cover some of the cases which are frequently seen in Industrial Disease cases. This Article is the first such ‘essential’ case. This case considers evidence, inference and prejudice when considering Section 33 of the Limitation Act 1980.
Price v United Engineering  P.I.Q.R. P407 per Brooke and Waller L.JJ.
The Claimant brought a NIHL claim on said to have been caused by noise when working at two steelworks. The case was set down for a trial of the preliminary issue of limitation.
The first instance Judge found that the Claimant had known of his potential claim by the end of 1986. The claim was out of time under section 14 of the Limitation Act 1980, having been issued in November 1992.
When considering section 33, the Judge took into account that:
- Both Defendants had long since ceased to trade.
- There had been numerous liquidations, takeovers and amalgamations in the steel industry.
- Some sort of apportionment exercise would need to be undertaken. This was not just between the Defendants but also other noisy employers who were not defendants.
- Whilst the Defendants had called no evidence on the point, records may have been destroyed, and potential witnesses may have died or become untraceable. The cogency of evidence at trial had been seriously affected.
- The delay was not the Defendants fault, but lay with the Claimant and his solicitors.
The Grounds of Appeal
The first ground of appeal was in relation to a subpoena which the Judge had quashed. The Claimant’s solicitors had sought to subpoena a Senior Claims Manager of the insurers of both Defendants. The Claimant sought evidence as to whether other claims had been settled at the works where the Claimant had worked.
The second ground of appeal related to the fact that the Judge had taken into account that records may have been lost and witnesses may have died or become untraceable. The Defendants had not called any evidence on the point.
The Subpoena Appeal
The court found that evidence that other claims had been settled was not a relevant factor when considering whether the Defendants were prejudiced by the delay in the case before the court. Insurers may settle claims for a number of reasons, so as not to incur the costs of litigation. The court found that evidence as to the settlement of other claims should not be allowed.
The court noted that some NIHL claims were difficult to defend. It was also considered that if a case is brought within 3 years of the date of knowledge then a defendant may be prejudiced, but simply cannot complain of it. It is only when a case is brought beyond the 3rd anniversary of the date of knowledge that prejudice can be considered by the court (as per Gwentoys).
The Appeal as to whether an Inference could be drawn
The court found that the Defendants did not need to call evidence as to the fact that records may have become lost or witnesses may have died/ become untraceable. The court was entitled to draw such an inference.
The Judge was also entitled to take into account the fact that apportionment would need to be undertaken. Although it was submitted by the Claimant that a broad brush approach might be taken (so not to disadvantage the Defendants), the court found that this was not consistent with justice.
This short Judgment (the Judgment itself only runs to about 5 pages) is helpful case when considering section 33 and the evidence available to the court. In short:
- Evidence that other similar claims have been settled is irrelevant as to assessing prejudice in the case at hand.
- The court may make an inference that records may have become lost over time, and that witnesses may have died or become untraceable. The Defendants did not need to call evidence as to the nature of the records or witnesses.
- That difficulties in apportionment can be taken into account. This is more likely in multi-defendant claims, and those where some employers are not pursued.
- That witnesses’ memory may fade.
Of course, if a defendant is able to call specific evidence as to prejudice caused by records being lost, or witnesses having died/ become untraceable, then that is very likely to be more persuasive of prejudice than an inference.
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