Time-bar in asbestos litigation in Scotland: case law updates

There have been some significant judgments relating to time-bar in asbestos litigation in Scotland recently.

In this blog we take a deep dive into the latest judgments which will be relevant for many industrial disease cases being defended on time-bar grounds.

The limitation periods for personal injury claims in Scotland are contained in the Prescription and Limitation (Scotland) Act 1973. The headlines are:

• Before the three-year clock starts ticking, the pursuer needs to be actually or constructively aware they have suffered an injury due to an act or omission of the defender and that the injuries were sufficiently serious to justify bringing an action for damages.
• There is no “two disease rule” in Scotland. The clock does not reset if the pursuer later develops a more serious asbestos-related disease.
• The exception is with fatal cases, where the three-year clock resets on death, assuming that the case is not already time-barred by the date of death.
• Section 19A of the 1973 Act permits the court to exercise its equitable discretion to allow a particular claim to proceed late.

It is relatively common for a pursuer to have been diagnosed with pleural plaques more than three years before a court action is raised, with the court action being based on a more recent diagnosis which was likely accompanied by advice on eligibility for compensation.  When raising a time-bar defence we are typically met by an argument that the claimant was not actually told of his earlier plaques diagnosis and/or it would be equitable to allow the case to proceed late on the basis that the claim is insured or there has otherwise been no prejudice to the defender in the delay in raising an action.

Two judgments from 2021 are good examples of how the court can deal with the subjective issue of when equity should favour allowing a claim to proceed late.

In Paul Madden v Duncan Anderson [2021] SC EDIN 56 the All-Scotland Sheriff Personal Injury Court refused to allow a plaques and DPT claim to proceed late. The pursuer had settled a plaques-only claim against one of his employers in 2017. Insurers for his other employer couldn’t be traced and so his full and final settlement was subject to a 25% Holtby deduction. He then developed DPT and instructed different lawyers. Those lawyers found insurance for his other employer and sued them, more than three years after his plaques diagnosis.

In refusing to exercise its equitable discretion to allow the claim to proceed late the court took into account that the prejudice to the pursuer in refusing his claim was limited to the 25% Holtby deduction. The pursuer and his first lawyers had taken the “rational and reasoned” decision not to sue the other employer (now the defender) because insurance couldn’t then be found. This was, in effect, an abandonment of his claim against the defender.

Contrast that positive result for the defender community with John Kelman v Moray Council [2021] CSOH 131. This was a mesothelioma case where the pursuer (who survived to give evidence at proof) had received a pleural plaques diagnosis in 1999. The case was defended on the basis of time-bar.

The Court of Session found for the pursuer. It held that whilst he had received his diagnosis in 1999 (unlike most similar cases we see where there is a denial of knowledge of the diagnosis) he did not know then that it amounted to an actionable harm. He didn’t know this until his mesothelioma diagnosis in 2019, when he was directed to Clydeside Action on Asbestos who recommended that he contact solicitors. That is, he didn’t actually or constructively know that he could have sued his former employers for compensation until 2019. The three-year clock had therefore not started ticking until 2019 and the claim was not time-barred.

The pursuer had a “fall back” case under section 19A of the 1973 Act. That became irrelevant when the court found that the case was not time-barred. However, the Judge noted that, had the case been time-barred, he would have used his equitable discretion to allow the claim to proceed late.

The case is long and fact specific. Not every pursuer will have the same lack of awareness of the compensation regime for pleural plaques when they receive their diagnosis. Membership of a trade union or knowledge of former colleagues’ compensation claims may have made the result different. However, it seems very likely that cases which are defended on time-bar grounds will be met by an argument by the pursuer that they did not know that they were entitled to compensation at the date of their diagnosis. It is going to be hard to challenge a witness statement which denies the requisite knowledge for the clock to have started ticking in the absence of detailed entries in the medical records, particularly where a pursuer has sadly died before a court action is raised.

It would be prudent to review any current case which is being defended on time-bar grounds in light of this judgment.