Failure to Act Causes Loss of Claim

August 17, 2007

Failure to Act Causes Loss of Claim

A recent case illustrates the point that where a personal injury claim is anticipated, it is important to commence the claim promptly and not to adopt a ‘wait and see’ attitude.

It involved a serviceman who was partially deafened by a thunderflash whilst on a training exercise in 1993. He immediately noticed the effect on his hearing and in 1993 and 1994 had audiometric testing, which confirmed that he was suffering from tinnitus (ringing or noises in the ears) and deafness in his left ear.

The hearing loss was of the sensorineural type, which is irreversible. In the case of noise-induced hearing loss, the loss of hearing is particularly acute in the band of frequencies necessary to make speech intelligible. It is often accompanied by an inability to tolerate loud sounds, with the difference in sound level between a sound being inaudible and being painful becoming problematically small.

The serviceman’s hearing loss eventually caused his status to be downgraded as a temporary measure in 2001. In 2003, he was formally downgraded. This meant that he was likely to be permanently excluded from active service.

In 2004 he commenced a claim against the Ministry of Defence (MoD). The MoD argued that the claim should be rejected for being ‘out of time’ since the injury had been sustained more than three years prior to the commencement of the claim. In the case of a personal injury claim, the normal rule is that legal action must be commenced within three years of the incident giving rise to the claim or its having an impact on the claimant. In all cases, an injury must be significant to give rise to a claim. The court rejected the MoD’s argument and it appealed against the decision.

The Court of Appeal came to a different conclusion, ruling that the test of whether an injury is significant in such cases is an objective one, based on the injury itself, not a subjective one based on its impact on the claimant’s quality of life or ability to earn a living. The reaction of the man to the injury was not in point – he was in possession of all the facts he needed to be aware that the injury was significant in 1994. Accordingly the claim was out of time.