Limitation in Mesothelioma Claims

Our firm has dealt with 3 claims recently for widows who brought actions for their husbands'deaths outside the usual 3 year limitation period. All 3 claims have been successful in obtaining permission for the claims to continue. (Although one is subject to an application for permission to appeal).

There are common threads to all 3 widows' claims:

i. Their husbands' died in the late 1980's/early 1990's.

ii. All 3 widows went initially to their local personal injury solicitors who wrongly but crucially, probably not negligently, (in at least 2 out of the 3 cases), expressed doubts as to the prospects of succeeding. These doubts/advice were sufficient to put the Claimants off from continuing their claims. All the widows were told that they had difficult claims, some were told that they weren't very valuable.

iii. All 3 widows re-opened their claims promptly following the publicity surrounding the decision in Fairchild by contacting ourselves.

iv. All 3 were relatively young widows, 2 of whom had dependent children.

v. All 3 had high value claims but would have made then and now can still make a crucial difference to theirs and their families financial stability.

vi. All 3 cases were dealt with by senior and well respected Judges.

vii. All 3 could produce witness evidence of exposure to asbestos dust in breach of duty and/or negligence.

viii. All 3 claims were presented by David Allan Q.C.

ix. Two out of the three had to give evidence and be subjected to cross examination.

Although I won't go into detail about the Law, one of the leading cases Thompson -v- Brown says in summary that:

i. the Court will only disapply the limitation period where it is equitable to do so.

ii. The burden of showing that it is equitable to do so is on the Claimant. The Court must take account of all the circumstances pursuant to Section 33(3) of the Limitation Act 1980.

iii. The Court must consider that if limitation is not applied what the Claimant will lose will depend on the strength and value of his/her case.

iv. If the limitation provision is disapplied what the Defendant loses will depend on the strength of the case against it and the value of that case.

v. Finally, the Court should question whether or not there can be a fair trial.

Although, I consider that these 3 cases may well be helpful generally to industrial disease claims which are brought out of time I think there are some unique aspects to asbestos disease limitation cases.

Usually exposure to asbestos dust has taken place a long time ago generally between 20 and 40 years earlier than the death. This means that careful consideration has to be given as to what is the real prejudice to the Defendants in the Claimants' additional delay.

1. Have crucial witnesses died within the limitation period? Are witnesses still available to give evidence?

2. If documents have been destroyed what real difference will this have made? Personnel records are generally not of assistance since they do not record asbestos exposure generally. Are there other documents available? For example Industrial Injuries Disablement application or even a letter to the employer requesting assistance. Many people make applications for IIDB and the employer is asked about exposure at that time, this puts the Defendant on notice of the claim.

3. If other tortfeasors have gone out of business, when did they go out of business, was it prior to the Claimants dying? Did they have insurance anyway? Was there any greater chance of the Defendants finding the insurance during the limitation period than now?

Obviously, all 3 cases were difficult. We are absolutely delighted with the results for these widows who we consider deserved compensation. I believe it emphasises the importance of ensuring that asbestos disease cases go to asbestos disease specialists. The names of the cases are as follows:

Our Client -v- Thames Television Ltd.

Our Client -v- the Ministry of Defence.

Our Client -v- Emcor Drake & Scull Group Plc.