A 3 year limitation period applies to personal injury claims which means that Court proceedings must be commenced within 3 years of the date of an accident. Calculating the end of the 3 year period is straightforward for accident claims when you know the date of the accident. It is the date that the negligent act occurred causing the injury. It can be more difficult to calculate the start of the 3 year period for disease types of claims, such as deafness, mesothelioma and repetitive strain injury etc. This is because the symptoms caused by the negligent act may not appear until many years after the negligence and a Claimant will not be aware of any medical condition or injury at the time. In those circumstances the 3 year limitation period starts to run from the date of knowledge of the injured person, but it can still be difficult to ascertain when the date of knowledge commences. Where proceedings are issued after the expiry of the 3 year limitation period the Court can exercise a discretion to allow the proceedings to continue and for the claim to be pursued even though the 3 year deadline was missed.

The Court of Appeal in Carr v Panel Products (Kimpton) Limited [2018] EWCA Civ 190 set out a judgment of the factors to be taken into account when considering date of knowledge for the purposes of calculating the limitation period and the exercise of the discretion to allow a claim to continue when the limitation date has expired. Mr Carr was employed by the Defendants as a machine operator between November 1974 and April 1981. It was a noisy job. He suffered hearing loss and on the evidence if Mr Carr had worked on the machines he said he worked on for the times he alleged then he would have been exposed to excessive noise (assuming ear protection was not being worn).

Court proceedings were issued on 29 August 2013, some 32 years after the end of the employment, and a defence was served pleading that the claim was statued barred. At the trial the Judge found that the date of actual knowledge of hearing loss was in 2007/8. This was the time when it was noticed that Mr Carr was having difficulty hearing. It was significant enough that he could attribute his hearing loss to his work with the Defendant. The claim was statute barred. The trial Judge was not prepared to exercise a discretion in Mr Carr’s favour after taking into account the prejudice to the Defendant company’s ability to defend the claim (the company had gone into liquidation shortly after 1981).

The Court of Appeal agreed that on the evidence the trial judges reasoning for the calculation of the date of knowledge was sound and that the claim was statute barred. As far as the exercise of discretion was concerned the court recognised that the Master of the Rolls judgment in the case of Caroll v Chief Constable of Manchester Police [2017] EWCA Civ 1992 (paragraph 42) sets out the starting point for any court’s consideration of issues arising under an application for discretion. Thirteen general principles are summarised in the Master of the Rolls judgment ranging from the prospects of a fair trial, proportionality, length of and the reason for the delay.

An application of the limitation period and calculations of the date of knowledge and exercise of discretion when the 3 year period has expired will be fact sensitive for each individual case. On the facts of this case the Court of Appeal agreed that Mr Carr’s claim was statute barred and that it could not proceed. The Master of the Rolls judgment in Carroll is a good authority to be reviewed and considered for any cases of this nature.