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Published 12 November 2015
Whilst personal injury claims for pleural plaques alone have not been actionable in England and Wales since the House of Lords's decision in Johnson v NEI, Rothwell v Chemical & Insulating Co Ltd, Topping v Benchtown and Grieves v FT Everard & Sons in 2007, the question of how knowledge of pleural plaques should impact on claims for other asbestos-related conditions presents an ongoing conundrum. This question was considered in the recent judgment of Mr Justice Hickinbottom in Summers v The City and County of Cardiff, handed down on 28 October 2015.
Mr Summers was employed by Cardiff from 1966 to 1968 as a boilerman in the school meals department, and alleged that he worked in areas where he was exposed to asbestos dust from lagging. Following an episode of breathlessness and chest pain, in 2000, he was diagnosed with pleural plaques on 24 November 2000, and the question of whether he had developed asbestosis was raised. Whilst he consulted solicitors in relation to bringing a claim for the asbestos-related condition, the Claimant chose not to pursue the action.
In 2012, the Claimant was advised that he had developed diffuse pleural thickening, albeit the treating medical experts indicated that the diagnosis was not certain. He decided to pursue a personal injury claim for the diffuse pleural thickening.
The Defendant was unable to mount a positive defence on exposure or breach of duty but contended that the claim was statute-barred. The Claimant did not make an application to the Court to exercise its discretion to extend the limitation period under s.33 of the Limitation Act 1980, and instead denied that he had acquired the knowledge of his condition until 2012.
Whilst the Claimant conceded that he had formed the opinion that his exposure to asbestos had contributed to his breathlessness from 2000, his legal representatives sought to persuade the Court that the symptoms at that point in time stemmed from smoking, and that the Claimant did not have knowledge that his condition was asbestos-related until 2012.
Mr Justice Hickinbottom rejected the argument presented on date of knowledge and found that the Claimant had suffered from an actionable asbestos-related condition from 2000, and knew that his condition was significant at that point in time; as a consequence, the three year limitation period had expired before the judgments in Rothwell prevented the Claimant seeking damages for the condition of pleural plaques. Furthermore, as a result of the development of the Claimant's COPD from smoking, there was no obvious point between 2000 & 2011 where the Claimant became aware of a deterioration in his asbestos related condition. In short he believed his symptoms were significant in 2000.
The Claimant did not seek discretion under Section 33 of the Limitation Act until close to trial and the court refused an application at a late stage. This case demonstrates that the Courts are prepared to take an appropriate line where there is clear evidence of knowledge under Section 14 of the Limitation Act.
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