Actual vs Constructive Knowledge -

Actual vs Constructive Knowledge

To prove liability for negligence you need to establish knowledge. For example, if you believe that your employer is responsible for your injury you would have to show that they were aware of the threat and did not take any reasonable steps to avoid it.

The judge applies knowledge differently depending on the case. To establish knowledge, whether constructive or actual, the court will take into account several factors of your case.

Actual Knowledge

In Actual Knowledge, you must demonstrate that you became aware of the significance of your problem with strong pieces of evidence. In Carr’s case, the defendant argued that he had initially attributed his hearing issue to ageing, but the judge did now believe him.

In the Carr v Panel Products (Kimpton) Ltd case, an employee appealed against a dismissal of his personal injury claim against his former employer. He claimed that he would have been exposed to extensive noise while he was working in an environment with loud noise without ear protection. Afterwards, he was diagnosed with hearing loss. the claimant had been aware of his hearing loss but did not take any action or medical advice about it after many years when he received a letter from a lawyer.

The court said that the employee’s actual date of knowledge was in 2008, and his case was statute-barred under s.11 of the Limitation Act 1980. The judge refuses to use his discretion under s.33 of the Limitation Act to extend the limit period.

Additional Example

Let’s take the example of Judith who worked as a bartender in a club known for its very loud music. Judith always served at a bar next to the stage near the speakers. One day Judith experienced a ringing in her ears after shifts. She complained to her employer (the owner of the club), but he told her that he could do nothing for her.

In March 2020, Judith visited her GP who arranged to fit her with hearing aids.

In December 2023 a doctor confirmed her that her condition was likely caused by the noise exposure at the workplace.

For the court to establish the date of actual knowledge in Judith’s case the court will assess the date when first Judith became aware of the significance of her hearing loss.

Constructive Knowledge

Constructive Knowledge arises when an individual is legally presumed to be aware only because in some circumstances they are expected to be aware. “they should have known it”.

Constructive knowledge concerns people who had opportunities to know but they intentionally decided to ignore the situation without a good reason.

For example, if you visited your GP for your injury, it will be considered as an opportunity to ask your GP about the cause of your injury and he would have revealed the cause to you.

In collins v Secretary of State for Business, the court duggested that a reasonable person would have asked the doctor aout the possible causes of their illness after a diagnosis and that it is certain the doctor would have tell him.

In Carry’s case, the judge considered that if the employee had consulted his GP within a year of first identifying his hearing loss, he ‘would have’ been informed of the potential causes of his issue.

In Judith’s case, when she visited her GP in 2020 and arranged to fit with hearing aids, the court is more likely to considered that a reasonable person in Judith’s condition should have asked about the source of her problem and the GP would have informed her.

In this instance, you will need the assistance of a solicitor to obtain legal advice and guidance in your matter. Alternatively, you may contact us for alternative legal resolution options. We will work together to examine your case and provide a comprehensive analysis of your case. This will help you to determine whether actual or constructive knowledge applies to your case and assess other possibilities to increase your chance of winning in legal proceedings.

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Josué Mankoto

Legal Advisor