Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Lunt and BAC Impalloy Limited, in which a court was asked to consider whether an employee's personal injury claim had been brought out of time. The employee was employed by BI Limited between 1999 and 2020, a company which manufactures sacrificial anodes for cathodic protection. a process that protects steel structures from corrosion in marine and offshore environments. He worked with vibrating tools for around six hours a day during the course of his employment, except for a period of around a year in 2015-16. He was diagnosed with Hand Arm Vibration Syndrome, HAVS, in 2012 by an occupational health specialist and therefore had the requisite knowledge for the purposes of bringing a personal injury claim from that time. However, He did not bring his claim until 2023, three years after he was made redundant by BI Limited. BI Limited admitted it was in breach of duty to the employee and causation was established, the haves having been caused by excessive occupational exposure to vibration over a long period, but the court then had to determine whether or not the claim was out of time. The court found that the limitation period ran from the employee's diagnosis. From that point, he understood the correlation between working with vibrating tools and his symptoms. Every day that he worked with vibrating tools after that constituted a new continuing breach of duty by BI Ltd, in respect of which the employee had three years to bring a claim. This meant that all but around three weeks of the claim was statute barred. The employee was therefore relying on the court exercising its discretion to allow him to proceed with the substantive part of his claim out of time. This requires the court to carry out a balancing act, weighing the relative impact of its decision on the claimant and defendant. The burden was on the employee to show that the prejudice to him of not being allowed to pursue his claim outweighed the prejudice to BI Limited of it going ahead. The court noted that there would be no change to the evidential position of BI Limited if the claim were to be allowed to proceed. Documents and witnesses were still available. The employee gave evidence that he had received no training or information regarding HAVS risks and exposure to vibrating tools. The occupational health specialist had recommended annual reviews of the employee's condition and the employee had tried to follow this up but did not want to push it because both he and his wife worked at the firm. He therefore did not look into making a claim until after his employment ended. He first contacted solicitors in 2020 and there was some delay in the medical expert examining him, likely due to the pandemic. In the circumstances, he acted promptly after seeking legal advice. On balance, it was appropriate to disapply the limitation period. The employee was awarded £30,000 for pain, suffering and loss of amenity, plus £4,465 for future care and assistance. Look out for further episodes in this series to stay up to date on all things HR and employment law related.