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May 2, 2018

Mesothelioma Claims: Why Taking Civil Action From The “Date of Knowledge” is Crucial

 
 
 

More than four in five (83 per cent) people in a recent UK survey said they were unaware that victims of asbestos exposure, who were later diagnosed with mesothelioma but were unable to trace a former employer, can still pursue a mesothelioma claim. However, many compensation claims are increasingly begun or continued by a spouse, partner, son or daughter despite the victim passing away before their case can be heard.

There can often be a number of hurdles to overcome. Not least, the victim or the family initially feeling that it will be almost impossible to try and pursue a claim from a former employer whose business may no longer exist or who often robustly denies their liability. In almost all cases, victims are diagnosed with an asbestos-related disease between 30 to 40 years after an exposure to asbestos is now suspected of having occurred. Timing and asbestos awareness are all important factors in determining a defendant’s liability, and the success of the claim process.

Cases where a delay appears to have occurred

In law, an asbestos-related condition, caused by occupational exposure is treated as a personal injury, and is therefore subject to The Limitation Act 1980. This imposes a three year limit from a confirmed diagnosis to enter a claim, which could also be the “date of knowledge”, i.e. the date on which the claimant knew, or should have known, they were suffering from an asbestos-related condition. In other words, when would a reasonable man, in the same circumstances as the claimant become aware that a personal injury was caused by their exposure to asbestos?

This distinction is important in those cases where a delay appears to have occurred between the time when a claimant first became aware that they may have an asbestos-related illness and the date they started a compensation claim. Their medical records may make a reference to the possibility of an asbestos-related condition, but it was not clearly identified or diagnosed as asbestos-related.

A court may also hear that a claimant first heard about an asbestos-related disease mentioned by a doctor or a nurse, but it was not formally entered on the medical report. If at the time, the claimant dismisses the idea because they think they are unable to prove exposure occurred, they may not take any further action. A court will want to know why a claim was started only after an extended period from the date of knowledge.

A victim’s health can deteriorate extremely quickly

Another issue surrounding recognition of an asbestos-related condition is often the difference in the impact upon the victim. Mesothelioma is defined as an incurable, malignant cancer of the lung linings, while asbestosis is described as a non-cancerous form of pulmonary fibrosis. The lung tissue itself – known as the alveoli – becomes thickened and stiff over a period of time. This condition is similar to pleural thickening where it is the lung lining that is scarred and stiffened.

The early symptoms of mesothelioma are often a persistent cough, chest pains and weight loss while early symptoms of asbestosis are much less noticeable, such as breathlessness, regular tiredness and hypertension. Sometimes, victims can mistakenly consider these symptoms to be simply signs of “old age”, winter flu or another respiratory condition.

While it may take between 15 and 50 years or more before the first asbestosis symptoms appear, once a diagnosis mesothelioma is confirmed a victim’s health can deteriorate extremely quickly. Life expectancy is usually between 2 and 12 months, depending upon age and health. However, asbestosis is slow-paced and, in many cases, will remain stable for a long period of time before reaching a point where the victim decides upon taking civil action.

Decision as soon as possible after a diagnosis

Clearly, it is important for a victim or their family to take a decision to pursue legal action as soon as possible after a diagnosis by making a claim for provisional damages. Often used in cases of pleural thickening and asbestosis disease, the law allows a victim to claim for further injury / damages if a significant deterioration in their current condition occurs or they develop another more serious asbestos-related condition, such as mesothelioma.

Seeking the advice of a specialist asbestosis lawyer is always recommended as soon as possible following a confirmed diagnosed. Not only is it possible to miss the three-year deadline, the issue of the “date of knowledge” could prevent the progress of the claim. It could also mean that if a more severe condition develops, the possibility of compensation can be challenged.

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