What can legal systems can learn from each other?
Chris is an Australian-trained lawyer who has recently made the move to Thompsons Glasgow office where he is presently re-training in Scots Law.
Scotland and Australia, tragically, are both historic world leaders in exposure to asbestos. The positive side is that both are also world leaders in justice for those with asbestos illnesses – but there is a lot the two countries could learn from each other.
A lesson for Scotland: No unjust time limits
Scotland has a time limit of three years from when a victim knew, or ought to have known, about an asbestos illness to run a claim.*
Time limits on legal claims are very common. They are supposed to encourage people to run cases when the evidence is fresh and ensure claims don’t linger forever creating uncertainty.
This makes no sense when it comes to asbestos claims. Asbestos illnesses are insidious, taking decades to set in. Victims very often do not understand their rights to compensation for many years. Evidence gathering is more like historical research than a typical investigation.
Negligent companies and their insurers will not hesitate to hide behind time limits to avoid compensation for claims that are otherwise perfectly valid.
A lesson for Australia: Pleural plaques
Scotland is one of the world’s few jurisdictions where compensation is available for pleural plaques.
Pleural plaques are patches of thickening on the lining of the lungs which occur decades after exposure to asbestos. In many cases pleural plaques become ‘calcified’, meaning mineral and scar tissue build up making them appear easily on scans.
Most jurisdictions do not award compensation for pleural plaques. The common argument is that plaques do not cause symptoms. This is true in the sense that pleural plaques themselves are typically benign and have no impact on life expectancy. This approach, however, lets negligent employers off the hook
Many patients do experience a range of issues related to pleural plaques. The anxiety of diagnosis, and living with the prospect of developing a more serious illness, weighs heavily on many victims. There are many anecdotal reports of discomfort and pain. Fundamentally, it is a permanent change to the lung - a violation of bodily integrity - that those responsible should have to answer for.
The Scottish Parliament has intervened to make compensation available for the anxiety of diagnosis and the risk of developing future illnesses. This sensible approach provides many victims with compensation where they would otherwise be ignored, and holds unscrupulous employers to account. Australian jurisdictions should follow this example.
If you have been diagnosed with an asbestos-related illness, Talk to Thompsons on 0800 0891 331 without delay.
Blog by Chris Gall, Lung Disease Team
*There are arguments and exceptions to this rule so please contact us if you have been diagnosed with an asbestos illness even if you think your claim might be out of time.
