Recent ruling will have significant impact on asbestos related claims - Lauren Kyle

Thompsons Solicitors were recently successful in the case of Kelman v Moray Council which will have a significant impact on limitation arguments made by Defenders in asbestos claims.

Under Section 17 of the Prescription & Limitation (Scotland) Act 1973, a claim must be raised in court within three years from the date that the Pursuer knew or ought to have known that they suffer from an asbestos-related condition (ARC).

In most cases, any claim not raised within the limitation period will be time-barred. Historically, insurers have used the case of Aitchison v Glasgow City Council [2010] CSIH 9 to prevent Pursuers from claiming compensation in cases where they have been diagnosed with an ARC more than 3 years ago and have later developed a new ARC arising from the same asbestos exposure.

The issue of when a Pursuer “ought” to have known they had an ARC has long been an issue of contention. Under S17 (1A) of the 1973 Act, the limitation period starts from the date that, in the court’s opinion, it would have been reasonably practicable for the Pursuer in all circumstances to become aware of all of the following facts: that the injuries in question were sufficiently serious to justify his bringing an action of damages; that the injuries were attributable in whole or in part to an act or omission; that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

Lauren Kyle is a Solicitor with Thompsons

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Mr Kelman was diagnosed with pleural plaques in 1999 and developed mesothelioma in 2019. The Defenders argued that the claim was time-barred, as Mr Kelman had attributed his pleural plaques diagnosis to his asbestos exposure.

The Pursuer argued that he wasn’t aware his injuries were sufficiently serious enough to bring action for damages, until he was given a terminal diagnosis in 2019. Mr Kelman worked in Elgin, where he did not have many people around him that ought to have known about the dangers of asbestos exposure. He had been reassured by his Doctors that pleural plaques were benign and that there was no need for further medical review. He had been discharged from the Respiratory Clinic at his local hospital. He was not aware in 1999 that he could claim compensation for pleural plaques and he was not provided with any information on asbestos charities.

The issue for the court to examine was whether it was reasonably practicable under S17 (1A) to expect Mr Kelman to have raised a claim for pleural plaques back in 1999. Lady Wise held that although Mr Kelman was aware of his plaques diagnosis in 1999, he was not aware that his diagnosis was significant enough to justify making a claim for compensation and therefore under S17 (1A) he could not reasonably have been expected to raise a claim at that time.

Furthermore, as soon as Mr Kelman was diagnosed with mesothelioma, he took immediate action, therefore he acted reasonably and appropriately at all times. Lady Wise therefore held that the case was not time-barred and she allowed the case to be heard.

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This decision is significant as it offers some clarification on S17 (1A) and the issue of when the limitation period starts. If an individual has been made aware of their asbestos related diagnosis but they reasonably did not know that their injuries were significant enough to justify bring an action for asbestos exposure, then the Court will likely take the view that the points set out in section 17 (1A) have not been met and the limitation period has not started.

This case also clarifies some of the points that Pursuer’s Agents should be asking their clients when assessing when limitation starts, e.g whether the client was made aware that they could claim for pleural plaques, whether they were provided with any information about an asbestos charity and what they understood their diagnosis to mean at the time. It can now be argued that the mere fact the Pursuer is aware they have an asbestos related condition more than three years ago is not sufficient means to timebar a case.

Lauren Kyle is a Solicitor with Thompsons

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