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Employer’s limitation defence failed to defeat asbestosis claim

13th January 2016

An employer that sought to rely on the defence of limitation in a recent asbestosis claim pursued by Moore Blatch was found to be liable to pay compensation.

Moore Blatch asbestos-related disease expert, Michael Osborne was instructed in March 2014 by Mr B to claim damages for his asbestosis and asbestos related diffuse pleural thickening with elements of folded lung and pleural effusion. The medical expert on behalf of Mr B estimated that his total asbestos related disability was 20%.

Mr B had been exposed to asbestos between about 1947 and 1953 as an apprentice gas fitter/turner at Watford Gas Works.  He was heavily exposed to asbestos through, among other things, stripping asbestos lagging from pipes, removing asbestos gaskets and working near laggers who mixed up and applied asbestos lagging.

In response to Mr B’s claim, the defendant raised an unusual defence, arguing that the law on the time limit for bringing damages claims (known as limitation) in this case was that which was in force when Mr B was exposed to asbestos.  At that time, the law required court proceedings to be issued within six years of the claimant’s exposure to asbestos.  In Mr B’s case this period would have expired in about 1959.

In 1954 the law on limitation changed allowing claims as long as court proceedings were brought within three years of the date when someone first knew that he/she had an injury which was due to asbestos exposure; this continues to be the law today.

Michael comments: “In other words, limitation is no longer triggered by the date of exposure to asbestos, but instead, by the date of knowledge of the asbestos condition.  This date is, of course, usually very many years after the exposure to asbestos.”

The defendant argued that because Mr B’s exposure to asbestos had ended before the law was changed in 1954, the pre-existing law, calculated from the date of exposure to asbestos applied, and that his claim should not be allowed to proceed.

Michael continues: “We countered the defendant’s argument by relying on a House of Lords’ decision that, even if someone’s exposure to asbestos had taken place before 1954, if he/she only developed an asbestos condition after that year, the law on limitation is that which has applied since 1954.

“The defendant gave no indication that it accepted our argument and we pressed on with court proceedings.  Eventually, in December 2015, the defendant’s solicitors agreed to a reasonable provisional damages settlement.  This awards Mr B an immediate payment of damages for his current asbestos condition and will allow him to make another claim if he ever develops asbestos-related lung cancer or mesothelioma.”

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