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28 October 2015
The claimant requested permission to proceed out of time for claim for injuries sustained during the course of employment as a boilerman as a result of exposure to asbestos. It was held that the claim could not proceed out of time as the claimant had the requisite knowledge before August 2011.
Between 1966 and 1968 the claimant worked for the local authority as a boilerman. At that time the condition in the boilerhouse was poor with asbestos lagging giving rise to asbestos dust.
In 2000 the claimant visited his GP complaining of breathlessness when undertaking minor exercise. A lump was subsequently discovered in his lungs and his medical notes revealed he was considering instructing solicitors. Further investigation revealed that the claimant telephoned solicitors and investigations were undertaken but a claim was not pursued.A subsequent chest x-ray in 2002 diagnosed a large pleural plaque in his left lung. The claimant attended no further chest clinics until 2011 when his condition worsened. Another scan in 2012 identified pleural plaques with pleural thickening. Proceedings were issued against the local authority in August 2014.
The court held that the claimant had not discharged his burden of proof under s 11(4)(a) and s 11(4)(b) of the Limitation Act 1980 (‘LA 1980’). The claimant had known in 2000 that he had been injured as he was advised that he suffered from pleural abnormalities. His consideration of claim and discussion of his employment history with medical staff shows a belief that that injury was attributable to exposure to asbestos dust whilst employed by the local authority.
‘Knowledge’ in the context of s 14, LA 1980 did not mean knowing for certain, it meant knowing with sufficient confidence reasonably to justify embarking upon steps preliminary to the institution of proceedings against those whose act or omission had caused the significant injury concerned, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.
Claimants need to ensure in relation to respiratory diseases that they do not, as Mr Summers did, ‘lose interest’ when told the cancer is not malignant. The three year time limit will still apply regardless of whether at the time they believed an action was worth pursuing.Sandra De Souza and Amy Wedgwood, Anthony Gold