Section 33 Discretion in NIHL Claims: Carr v Panel Products Limited [2018] EWCA Civ 190

In this article, we discuss the recent Court of Appeal judgment in Carr v Panel Products Limited [2018] EWCA Civ 190, concerning limitation under the Limitation Act 1980. The claimant appealed the first instance judge’s decision not to extend the 3 year limitation period afforded by the Limitation Act 1980.

The claimant brought a claim 32 years after the end of his employment, issuing the Claim Form on 29 August 2013.


The claimant was employed by the Defendant (Panel Products) between 1974 and 1981. The defendant was the manufacturer of flat pack furniture and was involved working with wooden materials. He stated that, during the course of his employment, he was unaware that noise could be injurious to hearing and only realised this by (perhaps) his late 30s, between 1984 and 1994.

Even though the claimant was just 51 in 2007, he attributed his hearing lose to ‘old age’.

However, in late 2010/early 2011, the claimant attributed his hearing loss to his work because he had seen a flyer advertising Noise Induced Hearing Loss claims.

First Instance Decision

The limitation period is three years. Under s.11(4), the date from which the limitation period begins is either the date of the cause of action or the date of knowledge (if later). In NIHL claims, the relevant date will usually be the date of knowledge.


Pursuant to s.14 of the Limitation Act 1980, counsel for the claimant argued that the claim was within the limitation period. The date of knowledge is defined in s.14(1), as follows:


The judge at first instance, DJ Jenkinson, ruled that the actual date of knowledge was 2007/08. Adopting Dame Janet Smith’s approach in Johnson v Ministry of Defence [2012] EWCA Civ 1505, constructive knowledge was deemed to be one year post-actual knowledge. As such, at paragraph 23, he decided:

‘Applying an actual date of knowledge of 2007/2008 the claim should have been issued by 2010/2011. Applying a constructive date of knowledge of 2008/2009 the claim should have been issued by 2011/2012. On any basis, given my findings as to date of knowledge, this claim has been issued outside of the limitation period, and is accordingly statute barred by reason of the 1980 Act’. 

In the alternative, counsel for the claimant submitted that the judge could exercise his discretion under the list of statutory factors in s.33(3) of the Limitation Act 1980:


At first instance the judge ruled, at paragraph 22:

‘... the claim had been issued between one and three years late and that that delay had been unexplained. He considered that the defendant's audiology evidence would have been more cogent had it been undertaken earlier; he noted that Mr Carr's expert contended that his audiometry was more accurate than that of Panel's expert for a number of reasons, some of which would not have been open to him if Panel's expert had been instructed earlier. The judge considered that, even after Mr Carr clearly knew that his problem might be attributable to his work for Panel, there were delays in instructing the medical expert and in the commencement of proceedings to restore Panel to the register; these delays were unexplained.’

The Decision on Appeal

Lord Justice McCombe heard the appeal trial. The claimant’s first ground of appeal was in relation to s.14 of the Limitation Act 1980:

‘…the judge [at first instance] fell into the same error as the judge in Johnson (supra), identified in paragraph 18 of the judgment in this court in that case, in finding that Mr Carr had the relevant knowledge in 2007/8 because he knew (a) that he had hearing loss; (b) that noise could cause hearing loss; (c) that he had been exposed to noise; and thus (d) that his hearing loss had been caused by such exposure. As Johnson's case shows, one cannot jump to point (d), simply because points (a) to (c) are satisfied.’

However, McCombe LJ, in his judgement, upheld the decision of the first instance judge. DJ Jenkinson was correct in his finding of actual knowledge (2007/08), as he had the full evidence before him.

Counsel for the claimant then argued that the judge at first instance was wrong in his finding on constructive knowledge.

On the contrary, McCombe LJ reasoned, at paragraph 38:

‘… the judge [at first instance] was quite entitled to reach the view that he did as to what Mr Carr would have learnt at the hypothetical GP appointment which Mr Carr accepted could easily have been had [and] … It seems to me that his situation is indistinguishable for practical purposes from that of the claimant in the Johnson case’.

Subsequently, McCombe LJ moved on to consider the claimant’s appeal concerning s.33 of the Limitation Act 1980. Claimant counsel argued that the judge at first instance had not taken into account ‘… the failure by the judge to consider prejudice to Mr Carr, presumably owing to the passage of time in conduct of the proceedings and in the potential loss of his claim’, pursuant to s.33(1)(a) of the Limitation Act 1980:


Counsel for the Defendant, however, submitted that prejudice, under s.33(1), relates ‘exclusively, or at least mainly’ to the prejudice caused by loss of the claim, as opposed to general prejudice to litigation. Nevertheless, McCombe LJ, at paragraph 46, indicated that prejudice ‘does not need to be expressly raised by a claimant in pleading or argument’ and went on to state, at paragraph 48:

‘As I have said already, potential prejudice to a claimant by the loss of his or her claim is the universal consequence of a claimant losing a limitation argument. Further, the Master of the Rolls said in paragraph 42(3) of his judgment in Carroll (supra) that the burden was on the claimant to show that his or her prejudice would outweigh that to the defendant. This must presume that factors of prejudice, beyond mere loss of the claim itself, can be advanced by a claimant in argument on the application of section 33 in any given case in order to satisfy that burden’.

He continued, at paragraph 49, to say:

‘However, in my judgment, I do not consider that the judge can be faulted on this aspect of the case. This is simply because Mr Carr did not raise, either in his pleadings or in his evidence, any specific issue of prejudice caused to him by the passage of time to meet the burden that was on him in this respect’. 

At paragraph 82 & 83 of the judgement, McCombe LJ dismissed the appeal:

‘In my judgment, on overall consideration of the judge's decision, I do not consider that he went outside the bounds of his reasonable discretion in the matter’.

‘If and in so far as any criticism can by properly levelled at the judge's decision, I consider that this court could properly re-make the section 33 decision and should reach the same conclusion as did the judge. In my judgment, the cumulative features of this case to which I have already referred in this judgment, excluding the factor relating to the audiometry results, added in by the judge of his own initiative, amply justified his conclusion not to exercise discretion in Mr Carr's favour’.

The full text judgment can be here.