Dave Berry | Partner

Clarification for Asbestos-Related Personal Injury Claims

In Scotland, if you want to claim compensation for an asbestos-related condition (ARC), the action must be raised in court within a specific time limit. This is referred to as the limitation period.

The Prescription & Limitation (Scotland) Act 1973 (‘1973 Act’) sets out a claim must be raised within three years from the date the Pursuer knew that they had developed an asbestos condition. Alternatively, a claim can be raised within three years from the date the Pursuer ought to have known that they had the condition.

Generally, a Pursuer cannot claim compensation if a claim has not been made within this three year period. When this happens the claim is said to be time-barred and cannot proceed.

In cases involving an asbestos related condition it is possible for Pursuers to develop one condition and then go on to develop a subsequent condition. The most common condition the Pursuers will initially develop is a condition known as Pleural Plaques.

Traditionally, the case of Aitchison v Glasgow City Council [2010] CSIH 9 was relied upon by Defenders. This case generally prevented Pursuers claiming compensation where they had two different ARC diagnosis’, which arose from the same exposure, but their first diagnosis had been more than three years ago. In this case it was viewed that the initial diagnosis started the three year time period. No new right to claim was started with the diagnosis of a second condition. Pursuers therefore had to move quickly when diagnosed with an initial condition. If a claim was not made within the initial three year time period then the Pursuer had no right to make a further claim after the diagnosis of a second condition.

A rather controversial issue however, is the issue of when the Pursuer ‘ought’ reasonably to have had knowledge of their ARC. The limitation period essentially begins from the date of knowledge. The court usually determines this date by identifying the time it would have been ‘reasonably practicable’ for the Pursuer to be aware of the following three criteria:

  • Their injuries were sufficiently serious to warrant the Pursuer raising a claim.
  • Their injuries were attributable in whole or part to an act or omission.
  • The Defender was the person or one of the people whose act or omission contributed to the injuries in whole or part or the employer or principal of that person. 

The date when someone gains knowledge of their ARC can be difficult to confirm and this has been problematic when court actions are raised. However, the recent case of John Kelman v Moray Council has had a consequential impact on the limitation period of asbestos-related claims. In particular, the judgement provides us with clarification on the date of knowledge principle.

Mr Kelman was a maintenance electrician employed by Moray Council. In 1999 he was diagnosed with Pleural Plaques, an asymptomatic lung condition. Twenty years later, in 2019, he was diagnosed with Mesothelioma, an incurable cancer. Both of Mr Kelman’s conditions were related to his exposure to asbestos whilst working for Moray Council.

Mr Kelman claimed for compensation in 2020, however, Moray Council argued he was out with the limitation period as his first diagnosis was twenty years ago and therefore, he was time-barred.

The Pursuer’s argument focussed on him being unaware that his ARC was ‘sufficiently serious’ enough to claim compensation in 1999. The Pursuer relied upon the following facts:

  • Mr Kelman worked in Elgin and due to the geographical location of the town, he was deemed to not have many people around him who could offer advice on the risks of asbestos exposure.
  • Mr Kelman had been reassured by his Doctor that his condition was benign, a further review was not necessary and he was discharged.
  • Mr Kelman was also unaware of his ability to claim compensation for Pleural Plaques and was not issued with any guidance or information on asbestos charities.

The issue in question filtered down to whether it was reasonably practicable for Mr Kelman to claim compensation for his diagnosis in 1999 under the 1973 Act. It was held that despite Mr Kelman’s awareness of his ARC in 1999, he was unaware that his diagnosis was serious enough to raise a personal injury claim. Therefore, it was not reasonable to have expected Mr Kelman to claim for his ARC in 1999.

Additionally, it was held that Mr Kelman acted appropriately and reasonably at all times as he raised the claim immediately following his second diagnosis. It was ruled that Mr Kelman’s case was within the limitation period and not time-barred.

This decision clarifies the ambiguity surrounding the date of knowledge rule in relation to the limitation period. In the future, it is likely that the Court will decide in favour of the Pursuers, and decide the limitation period has not started, if the Pursuer is aware of their condition but unaware it was significant enough to bring a personal injury claim.

In the case of Mr Kelman, the Court makes clear three points which the Pursuer must consider in raising a claim. They include: if the client was aware they could claim compensation for the ARC; if they were issued with any information about asbestos charities; and at the time, what they understood their ARC diagnosis to mean.

The case illustrates that a simple awareness of an ARC more than three years ago is not enough for a case to be time-barred.

To discuss a potential case for an ARC, contact us today to speak to our specialist team.

Dave Berry

Dave Berry

Personal Injury Team

“It may be something of a cliché but I enjoy helping my clients and guiding them through what can often be the daunting prospect of being involved in a personal injury court action, whilst also ensuring I obtain the best possible result for them.”

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