When a diagnosis of an asbestos-related condition is confirmed, a failure to act quickly can be devastating in more ways than one, as a pensioner found out to his cost when his asbestosis claim was recently dismissed by a High Court judge.

The 71 year old first became aware that he was suffering from an asbestos-related condition following a biopsy to analyse suspected diseased cells in 2000. The microscopic diagnosis confirmed that he did not have asbestosis or a malignant, fatal mesothelioma cancer, and therefore, did not consider it was worth pursuing a claim for compensation from his former employers. The pensioner had smoked all his life and at the time, felt able to live with acute shortness of breath and chest pains.

A “breach of duty” by his employer

The court accepted that the pensioner was exposed to asbestos between 1971 and 1973 whilst working at a school to maintain the boiler system, which amounted to a “breach of duty” by his employer, the local council. The job involved working close to the school boilers and pipework insulated with asbestos lagging in a “very poor condition”. Worn, damaged or disturbed asbestos found to be in a fragile state of deterioration release fibre dust particles, which accumulate and are easily inhaled.

The former maintenance man suffers from asbestos-related pleural plaques which, alongside a long-term smoking habit has now left him with serious physical problems. However, the court judge agreed with the council defendant and rejected the claimant’s action on the grounds that he had “left it too late” for making a claim.

An individual can be stopped from pursuing a claim

The time period allowed by law for commencing proceedings to bring a mesothelioma claim is set at three-years, known as the “limitation period”. Failure to start a court action within this time limit means an individual can be stopped from continuing to pursue a claim. The limitation period starts not from the actual time, during which an exposure to asbestos is alleged to have occurred, but from when asbestosis symptoms appeared or the disease is diagnosed and directly linked to the original asbestos exposure.

It is almost always the case that the first signs of asbestosis disease will only appear from between 15 to 50 years or more from the original time of asbestos exposure and the inhaling of the fibre dust particles. As was shown in the case of the former school maintenance man, the early indications, such as shortness of breath, fatigue and chest pains can be simply overlooked and “put up with”, if the victim was a smoker. Sometimes, symptoms can also be misdiagnosed as another lung ailment.

Tragically, it is too often the case in a confirmed mesothelioma diagnosis that the cancer is at a late stage and the patient may only expect to survive another 4 to 12 months.

Coroner’s report has to be obtained

A patient at an advanced age can simply pass away before the claims process can be completed or in some instances even before it began. In these circumstances, the three year time limit will commence from the date of the victim’s death, which allows the spouse or a family member to pursue the claim on behalf of the deceased. However, this is can only take place where the three year period has not already expired during the lifetime of the deceased.

Where the cause of death has not been definitely linked to mesothelioma cancer, a coroner’s report has to be obtained following a post-mortem examination. Under these circumstances, the family of the deceased would then be able to commence an asbestosis claim, and the limitation period would start either from the date of death or the date when the cause of death was confirmed by the post-mortem.

A court may still give permission

Establishing a cause of a victim’s mesothelioma as being the direct result of exposure to asbestos at a specific work location and the extent of employer liability has often been a key challenge. It was only relatively recently that the courts decided that the limitation period began not from the actual time during which a victim claims to have been exposed to asbestos, but from when symptoms first appeared or the disease is diagnosed and causally linked to the original asbestos exposure.

It is therefore extremely important to begin a claim at the earliest possible time. A court may still give permission to bring a claim outside of the strict three year limitation period, but only in exceptional circumstances, which will depend upon the facts assessed on a case-by-case basis.