Between 1981 and 2000, the claimant was employed by the defendants as a gardener.
In 2010, the claimant brought an action for the noise-induced hearing loss he sustained during the course of his employment with the defendants. The Claimant applied under s.33 of the Limitation Act 1980 (‘the Act’) to disapply the primary limitation period under section 11.
Having initially been granted permission to proceed by DDJ Smith, the decision was overturned on appeal by HHJ Hollis who found that a claimant seeking to rely on the discretion conferred by section 33 faced a “particularly heavy burden”, and that the Claimant in the present case had failed to discharge that burden. The claimant appealed to the Court of Appeal.
The Court of Appeal took the opportunity to review the authorities. It was submitted on behalf of the claimant that the proposition in KR v Bryn Alyn Community (Holdings) Ltd, that section 33 imposed a “heavy burden” on a claimant, was no longer good law having been rejected by Smith LJ at paragraph 96 of AB v Ministry of Defence (recently approved in Davies v Secretary of State for Energy and Climate Change). It was submitted on behalf of the defendant that KR v Bryn Alyn was still good law and that Smith LJ’s comments in AB v Ministry of Defence were per incuriam.
Jackson LJ however, found it difficult to maintain that the claimant’s burden under section 33 is necessarily a heavy one in view of the decisions in Horton v Sadler and A v Hoare, which stressed that the court’s discretion under section 33 is broad and unfettered. He resolved simply that in relation to section 33, the burden is on the claimant. How difficult or easy it is for the claimant to discharge that burden would depend on the facts of each individual case.
It followed that the circuit judge had applied the wrong test. The Court therefore re-exercised the discretion conferred by section 33, but found that on the facts, the claimant had not discharged the burden. (Guy Coleman appeared as junior counsel for the Claimant).
/ 1st Feb 2013
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