How long do you have to make an asbestos compensation claim?

In Scotland, any action involving a personal injury must be raised in court within a certain period of time.

You may have already seen or heard advice that says you have to make asbestos claims within three years of being diagnosed with an asbestos-related condition – but that may not always be the case.

To understand why, you need to look at Section 17 (2) (b) in The Prescription and Limitation (Scotland) Act 1973.

This legislation states that in addition the date of being diagnosed, that other factors need to be considered:

1. the victim knew their condition was serious enough to justify a claim
2. the condition is partly or fully the result of negligence from the employer
3. that the defender was responsible for the negligence causing those injuries either in whole or part 

Once all these facts are established then the clock on the three-year time limits starts.

But if they have not been established then it means an asbestos victim can still pursue damages as the three-year time limit has not yet commenced.

Time limit in asbestos disease claims

The three-year time limit discussed here is known in the legal world as “time bar” and if a claim is no longer valid because too much time has passed then it is said to be “time-barred”.

Part of the problem in establishing time bar is that different asbestos-related diseases can develop or become symptomatic at different times.

“I was diagnosed with pleural plaques and didn’t claim at the time, but now I have mesothelioma – am I still time-barred?”

Understandably, many people think a new diagnosis starts a new three-year time limit. This is when things become complex and challenging.

To understand why time bar is not straight-forward we need to look at how the law has operated, been interpreted and developed over the last few decades. 

History of time bar in asbestos disease claims

In 2001 a case came to court called Carnegie v Lord Advocate. This was about a soldier who was assaulted and bullied. Carnegie (the soldier) was first attacked in July 1991 and again in March 1992. He was diagnosed with a psychiatric injury in May 1992 but he did not pursue damages until March 1995. Despite raising a claim more than three years from the date of the attacks, the judge ruled it was okay for Carnegie to pursue damages.

This ruling became the benchmark for time bar and it was used by personal injury lawyers for years as a way to navigate – and win – cases. 

However this changed in 2012 when a historic abuse case – Aitchison v Glasgow City Council – redefined the understanding of when the time bar clock started ticking. Aitchison was assaulted in the 1970s and diagnosed with a psychological injury decades later. When Aitchison finally sought damages for the psychological injury the court, on appeal, refused. It was ruled that Aitchison could not claim for mental injuries which were linked to the first physical injuries. 

Insurance companies then attempted to use this decision as a way of redefining when the time bar clock started ticking as a means to having claims dismissed. 

In asbestos disease claims, this was most commonly seen in mesothelioma cases. People diagnosed with mesothelioma had compensation claims dismissed if there was evidence that they were previously diagnosed with conditions like pleural plaques but didn’t claim at the time. 

What made this harder to stomach was that it came shortly after then-Justice Minister Kenny MacAskill said: “…a claim for damages for mesothelioma should not be rejected simply because the limitation period for a claim for damages for pleural plaques has expired…”. 

This position worsened further in 2020 after Quinn v Wright’s Insulations Ltd. Mr Quinn was diagnosed with pleural plaques in 1994 but did not pursue a claim. He later developed mesothelioma and his family sought damages in respect of the meso diagnosis. Wrights Insulations argued the case was time-barred as he did not pursue a case for his pleural plaques.  Mr Quinn’s family asked the court to exercise its discretion to allow the case to proceed. The judge rejected this request, specifically highlighting that Quinn’s family provided no good reason why Mr Quinn didn’t make a claim for the plaques at the time of that first diagnosis.

Then in 2021 with Kelman v Moray Council there was a breakthrough.

Mr Kelman was diagnosed with mesothelioma after being diagnosed with pleural plaques years earlier. Like Quinn, Mr Kelman did not claim for damages after developing plaques. On the surface then, time bar applied – but this case was different. When Mr Kelman was diagnosed with pleural plaques he was given no information to make him believe his condition was serious enough to claim for. Why was this important? As outlined earlier, a victim needs to know their condition is serious enough to make a claim. The Judge accepted this argument and decided the time bar clock did not start with the diagnosis of pleural plaques but with the diagnosis of mesothelioma.    

It is therefore crucial to seek specialist and independent legal advice from an asbestos solicitor as soon as you have been diagnosed with ANY asbestos disease. 

If you have been diagnosed with a second asbestos-related disease and didn’t claim for the first one within three years then you may still have options and a route to support you and your family. 

Image

We know you’ll be going through a lot after any diagnosis but this is not just about a claim for compensation. It’s about protecting the welfare of you and your family members (while also holding those responsible to account for exposure to asbestos.) 

Image

Gary Ross
Associate Solicitor
Industrial Disease