For personal injury claims in Scotland, the time limit for pursuing a claim for damages is three years from the date of harm or knowledge of harm. However, in industrial disease claims, this can be tricky to establish as there are other factors taken into consideration.
If you are unable to settle your claim within the time limit, you must raise a court action before the time limit runs out. Otherwise, you might lose the right to claim.
In this article, we provide answers to some of the most frequently asked questions regarding time limits in industrial disease claims.
Please be aware that every case is different. If you are unsure whether you have a claim, it is important to discuss this with a specialist personal injury solicitor.
Date of knowledge
The date of harm (injury/disease) and the date of knowledge of the harm may very well and often will be, different.
In industrial disease claims, there is often, no set date because this is a harm that only occurs after a sustained period of exposure.
You may be exposed to the harm long before you suffer any symptoms from it and/or depending on the nature of the disease before you are ever aware that it is linked to your employment.
If you have not raised and served a court action within the three-year limitation period, then your right to claim will be statute-barred. This is why it is so important to seek legal advice as soon as possible.
What factors can affect the date of knowledge?
There are many reasons why your date of knowledge of the harm may be far different to the date of the harm itself. Symptoms, pain and suffering may not begin for some time, or there could be a delayed diagnosis.
If there is no confirmed date of knowledge in the medical history, i.e. it wasn’t a medical professional who brought this to your attention e.g. a doctor advising you that it is likely your symptoms/diagnosis are or are potentially linked to your employment, then the date of knowledge will be the date you personally made the connection between your injury and possible negligence by your employer. This can be very tricky to pin down and will often consider several factors, including:
- Period of exposure
- Onset of symptoms
- Diagnosis
- Review of employment and medical records
- When you ought to have had knowledge or made the connection.
Example
- You have worked for your employer since January 2015.
- You were exposed to asbestos from 2015 until 2021
- From early 2022 you become aware of other colleagues at work who are experiencing symptoms and/or who have been diagnosed with an industrial disease and are seeking legal action. Your employers are aware that your colleagues are discussing this within the workplace.
- Your symptoms begin in September 2022, and you mention this to your employers.
- You see your GP in October 2022 and they advise you that your symptoms could be linked to your employment. They refer you to hospital for more tests.
- You are diagnosed with an industrial disease in May 2023
The earliest point that you ought to have made the connection (knowledge) between the harm and your employment is September 2022. This is the earliest point you ought to have known that there could be a link between your symptoms and your employment given your knowledge of your colleagues' diagnoses and legal action. If you do not settle a claim or raise and serve a court before September 2025, your right to claim will be time-barred. If you miss this time limit, you could try to argue that the date ought to have been later i.e. at your October appointment with your GP or your diagnosis in May 2023, but it is unlikely to be successful.
The circumstances vary in every case and can become a contentious issue. It is therefore important that as soon as you suspect there may be a link between an injury and your employment that you seek advice as soon as possible.
Mental capacity and death
If the injured person lacks the mental capacity to bring a claim and has done so prior to or from the date of harm, then it is accepted that the three-year time limit will not expire until they regain capacity. If they are not expected to regain capacity, then the time limit will never apply, and a claim can be brought at any time.
If the injured person loses capacity after the date of harm, then the time limit applies as normal. If the injured person sadly dies during the three-year limitation period, then the three years is extended to the date of death or their date of knowledge of harm, whichever is latest.
Can I contest the three-year time limit?
The court has discretion over whether to allow a claim out with the three-year time limit under section 19 of the Prescription and Limitation (Scotland) Act 1973. However, this is rare and requires exceptional circumstances.
To discuss your case with a member of our dedicated team, call us today on 0800 988 8082 or complete our online enquiry form and we will get back to you right away.
