In a case which the Court of Appeal acknowledged was ‘of seminal importance’ to historic victims of industrial disease, a former dock worker who blamed his lung cancer on exposure to asbestos has had his compensation hopes dashed on the basis that he left it too late to launch a compensation claim.
The man claimed that he had been exposed to asbestos whilst unloading hessian sacks filled with the substance in the London docks between 1947 and 1967. He sued the successors of a company for which he had worked at the time as well as the Secretary of State for Business, Innovation and Skills, who had taken over the liabilities of the defunct National Dock Labour Board.
He contracted lung cancer in 2002, from which he happily made a good recovery, and it was agreed that he did not have ‘actual knowledge’ that he might have a viable claim until 2009, when he noticed a law firm’s advertisement concerning asbestos exposure of dock workers in a national newspaper.
However, his claim was dismissed after a judge found that, by mid-2003, he had ‘constructive knowledge’ that his cancer could have been caused by exposure to asbestos and that his damages claim had therefore been launched six years beyond the statutory three-year time limit that applies in personal injury cases.
The judge found that, at that point, the man could reasonably have been expected to ask the doctor treating him about the possible causes of his cancer. Had he done so, it was ‘almost inconceivable’ that the doctor would not have mentioned asbestos exposure as a potential culprit.
The Court of Appeal noted that there was surprisingly little previous legal authority on an issue which was ‘of seminal importance in relation to long-tail industrial disease claims’. In dismissing the man’s appeal, the Court found that the judge’s decision was correct in law.
Following the man’s cancer diagnosis, at least one doctor had asked him about his lifestyle and former employment. In those circumstances, any reasonable person in his position would have been prompted to inquire what light such questions might shed upon the possible causes of his condition. In the event, the man had delayed six more years before spotting the newspaper advert and asking ‘the obvious question’. The judge’s refusal to exercise his discretion so as to enable the man’s claim to proceed was also ‘plainly correct’.
Mesothelioma is expected to peak in the United Kingdom by 2015 and although little asbestos is used today, the latency period between exposure and diagnosis of mesothelioma can range from 20 to 50 years.
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