The ability to obtain answers about their exposure to asbestos some 30 or 40 years earlier is one of the most asked frequently asked questions an asbestosis lawyer can receive from a victim who has just been confirmed with a diagnosis of mesothelioma.

Under The Limitation Act 1980, a victim has three years to enter a claim from when their asbestosis symptoms first appeared or from the date the mesothelioma is diagnosed. In other words, the ‘date of knowledge’ of the person who suffered the injury (and not from the period of time during which a victim claims to have been exposed to asbestos). In a recent case brought before the courts, a claim was not allowed to proceed outside of the three year time limit as the claimant possessed a prior ‘date of knowledge’, fourteen years before pursuing the claim.

Embarking on a claims process can often seem a daunting prospect, especially with regards to making a claim for compensation so many years later. All too often, the victim may have been given just months left to live and it will be left to the spouse or another close family member to continue with an asbestosis claim after their loved one has passed away. In many cases, the original employer may no longer be in business or the company has passed to a different ownership. A claimant needs to prove exactly “how and where” exposure to asbestos occurred, and showing ‘on the balance of probabilities’ that it was the cause (or contributory cause) of their subsequent mesothelioma or asbestosis disease.

Instructed solicitors to begin investigations but a claim was not pursued

In the present case, the claimant visited his GP complaining of breathlessness – one of the early asbestosis symptoms – just over thirty years after the period of time when the exposure to asbestos was alleged to have occurred. As with most cases of mesothelioma, between 15 to 50 years or more may elapse from the original time of asbestos exposure and the inhaling of the fibre dust particles before the first signs of asbestosis disease becomes apparent.

The victim had worked in a local authority boiler room for two years during the late 1960s, when it was a common and widespread practice to use asbestos for insulating heating systems and lagging the pipework. Medical tests revealed a lump on the victim’s lungs who then instructed solicitors to begin investigations but a claim was not pursued. Two years later a chest x-ray diagnosed a large pleural plaque in the victim’s left lung but no further action was taken until ten year later when a scan revealed further pleural plaques with pleural thickening. It was only at this point, some 14 years after the initial breathing difficulties had appeared, that an action was begin against the former employers.

Unfortunately, the court refused the case to proceed on the grounds that the claimant had been provided with the knowledge of his ‘pleural abnormalities’ fourteen years earlier. In addition, his records show that at the time he had discussed his employment history with medical staff, indicating a belief that his condition was attributable to exposure to asbestos whilst employed by the local authority. However, the victim decided not to proceed with the claim once it was discovered that his condition was not malignant.

“Knowing with sufficient confidence” to reasonably justify beginning an action

The court held that the claimant had, therefore, not clearly satisfied the requirements of Sections 11(4)(a) and  11(4)(b) of the Limitation Act 1980. Section 11(4) states that a claim must be made within three years of the date on which the injury occurred or the date of knowledge (if later) of the person injured. Section 11(5) states that if a person dies within that three year period, then his estate can bring the claim three years from the date of death.

Under the Limitation Act 1980, the three year time limit still applies regardless of whether a victim believes “at the time” that an action to claim compensation was worth pursuing. ‘Date of Knowledge’ does not mean “knowing for certain” but “knowing with sufficient confidence” to reasonably justify beginning an action, such as submitting a claim to the proposed defendant, taking legal or other advice, and collecting evidence.

Failure to show that a claim has been brought within the primary limitation period of three years may not be the end of the matter for a claimant. The court has discretion under Section 33 of the Act to extend the primary limitation period, ‘if it would be fair and impartial to allow the action to proceed’, with regard to the prejudice to both parties. The late issue of proceedings by claimants suffering from a significant asbestos condition can be excused, for example, due to the effect of the symptoms.