A person put in a claim for noise induced hearing loss through a no win no fee solicitor following a recent hearing test that showed definite hearing loss caused by a noisy workplace. He claimed the noisy workplace was an employment he left some ten years ago but only realised about the hearing loss at the recent hearing test otherwise he would have put in the claim a long time earlier. As far as he is concerned although the hearing loss was caused more than ten years ago he only found about it recently. He has been involved in health and safety for the past ten years (change of career), a barrister has recommended the case go no further because “he ought to know” about the noise at work Regs and all about the three year limit for claims due to his new found knowledge re health and safety. Has anyone else heard of this law of “Ought to know”?

I suppose the Barrister 'Ought to know' that's why he has recommended. Even so, it's been more than 3 years, so the law says no, no matter if the claimant knew about the 3 year limit or not.

It does not matter; if he only found out he has a problem now, that is when the 3 years start ticking away not when he found out about the 3 year limit. He of course could be trying to be clever and claim he only found out recently?, even though he could have known for some time. My NEBOSH training did not give me the skills necessary to test myself, especially without equipment. Are they saying his hearing loss is so pronounced that he should have realised he had a problem without a test.

Chris42 has hit the nail fairly and squarely on the head. It would be a matter for legal debate as to whether his hearing loss was so pronounced he would have known prior to the hearing test. Then again, noise induced hearing loss often happens over time. Therefore, it would not necessarily have been noticeable as the brain often adapts to compensate for loss (gradual or not) of any of the senses.

Him knowing he was going deaf is not the same. Audiograms will show quite specifically if the loss is noise induced as noise predominently causes damage around certain frequencies. So without (before) proper tests, he would be unaware of the cause.

If the chap was a national expert on niose at work i can't see what difference it makes to his claim. I suppose there might be a contribtary negligence arguement but this only kicks in when deciding actual amount of cash to award - doesn't it?

Chris B - the "law" that you mentioned is merely an opinion expressed by a lawyer. As a barrister he'll have ample knowledge and experience of other cases on which to base his opinion. Also, his opinion might well depend on who he is advising. In addition, some of us forum users will be a bit sceptical about the assertion that the person involved has only found out about the hearing loss some 10 years after he stopped working in a noisy environment. If the degree of loss is significant to pursue a claim, surely he and/or his relatives and friends would have noticed some indications of loss years ago! However, this comment is based mainly on my own personal experience of hearing impairment some 9 years ago (cause uncertain, and probably didn't include excess noise exposure), and not with any medical or audiology expertise. It's possible that the barrister may also have advised that the chances of the claim being successful are fairly slim. Even though the findings of the recent hearing test indicated noise induced hearing loss, the former employer could well decide to defend on the grounds that other factors such as a possible penchant for loud music, natural age and/or inner ear disease have also contributed to the loss. Though these points are unfavourable to the claimant, it is likely that they will be discussed by the people involved and may have a considerable bearing on the outcome of the claim.

Thanks for all the replies, all good and most agree with my own opinion.

Actually it is three years from the date of the injury or three years from the date of KNOWLEDGE of the injury, if later. IE: three years from diagnosis. Hearing loss is an insidious injury, and may well not be realised for a very long time, if ever ! A similar problem exists for bronchitis, where the disease may well be misdiagnosed as asthma and treated as such. This may well lead to the illness progressing to the chronic state of the disease. See coal miners and COPD.

Link to Section 11 as previous link didn't work. http://www.legislation.g...ukpga/1980/58/section/11 Woolf Reform bill also springs to mind with regards limitations on PI Claims

Often council when asked for an opinion will often slew the argument in the direction which the client wishes to hear or identifying both side of the argument it very much depends on the question that the barrister has been asked in the first place. Without sight of the full opinion, the ought to know statement which this question is based upon is clearly too thin and incomplete.

'Stedman' may well have put his finger on what is going on, i.e. full story is submerged. The common basis on which solicitors in the UK consider a case on a 'no win, no fee' basis is that they take out insurance in case the case fails - or lapses. In this situation, the 'ought to know' is an abstraction, and may well refer to the likelihood that the solicitor 'ought to know' he or she is risking investing time in a case for which payment through insurance may not follow. A solicitor's version of a 'diplomatic illness'? or What the Bush administration sometimes referred to as 'misspeaking'?

Cant recall ever hearing about Ought to know in negligence, did encounter something similar in contract ( engineer purchased a defective machine, he ought to have known was defective). My understanding re the statute of limitations are that a claim over 3 years is not excluded, if one can show the court a valid reason why a claim was not made within the 3 years of discovering the defect, or for several other reasons.