Asbestos-Related Illness? Act Quickly To Make a Legal Claim
- AuthorJCP Solicitors
The process of making an Asbestos related injury claim is complex and such claims are often subject to strict timescales. It is vital that claimants seek detailed legal guidance. This is what you need to know:
When a claim must be made
Claims for asbestos-related illnesses, as with other injury claims, must be brought within strict timescales, as set out in the Limitation Act 1980. The rules are complicated, but usually, the person suffering from the illness will have three years from the date they became aware or should have suspected, that they were suffering from an asbestos-related illness. This will usually be the date they are diagnosed with an asbestos-related illness. If the person with the illness dies during this initial three-year period, the family will usually have a further three years to make a claim from the date of death.
Why are the limitation rules so complicated for asbestos claims?
In most types of personal injury cases, there will have been an incident/accident date which marks the clear start of the three-year period that the person has to make a claim. In asbestos cases, the person’s exposure to asbestos may have occurred 30, 40, or 50 years ago, or even longer. Triggering the allotted three-year period will be based on the claimant’s knowledge of a related injury. But in the case of an asbestos claim, this is far more subjective, and symptoms may occur for some time before a diagnosis is made.
This frequently leaves people who are suffering from asbestos-related injuries open to arguments from defendants regarding the date they say the person ‘ought to have known they were suffering from an asbestos-related illness.
Why do limitation rules affect asbestos sufferers' disproportionality compared to those with other types of claim?
Because someone can develop multiple asbestos-related illnesses at different stages in their lives, with different levels of severity. Some people with minor symptoms may decide not to pursue a claim.
However, the same person, if diagnosed with terminal mesothelioma caused by the same historical asbestos exposure and who needs care and assistance may decide to make a claim. They may do some research and discover there are medical treatments that could be funded by making a compensation claim, that are not currently funded via the NHS. However, if they were diagnosed with the earlier condition more than three years before being diagnosed with mesothelioma, technically the claim might already be out of time by the time they relieve that diagnosis.
Had the affected person sought advice within three years of the first diagnosis, a specialist solicitor could have advised him about the potential need to obtain a provisional settlement order from the court preserving his /hers right to bring further future claims if his condition worsened, or if he developed another asbestos-related illness at a later date. The position feels very unjust in these types of cases. However, The Court has considered many asbestos claims to be out of date, on the basis that the claimant did not make a claim in time for an earlier asbestos-related injury. This has left some mesothelioma sufferers unable to obtain compensation purely on this basis.
Why are these limitations in place?
These rules are in place to bring certainty to potential defendants that claims cannot be brought against them indefinitely. The Courts have to apply the limitation rules as they are set out in the Limitation Act 1980. The Court is able to make some exceptions, which are also set out in the same legislation but these exceptions are narrow and will not assist everyone.
If somebody comes to JCP with a claim that is potentially out of time, we will always explore every possibility for them and advise them on the specific facts of their case.