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Out Of Time Does Not Always Mean Out Of Luck

Irwin Mitchell were instructed in connection with a claim for damages following a family’s loss of a father in late 2005 after he developed the asbestos related disease mesothelioma.

Regrettably, the family were unaware of the fact that their father even had mesothelioma until a post mortem had been carried out as there was a sparse amount known about his potential history of asbestos exposure.

Following initial investigations it quickly became apparent that there was only one potential employer that could be responsible for exposing their father to asbestos.  However, as the company was no longer trading, the family had another hurdle to overcome in order to establish who the relevant employer’s liability insurer was for the company.  An application was made to the Association of British Insurers (“ABI”) in August 2006 but the ABI responded in May 2007 stating that no employer’s liability insurance policy for the company could be found.

Nicola Handley of Irwin Mitchell solicitors said “it was with great regret, that I had to advise the family that it would not be possible for a claim for compensation to be brought.  This was of course, very difficult for the family to come to terms with following the sudden loss of their father as a result of another party’s negligence.”

In 2010, Irwin Mitchell were then notified by the ABI that a policy of insurance for the company was in fact held by an insurer and full details were provided with the notification.

Mrs Handley was extremely pleased about the fact that they were now able to contact the family and advise them that a claim could be brought.  However, it was necessary to advise the family that as previously, there would again be difficulties in pursuing a claim.  Limitation had expired in late 2008 and under the Limitation Act 1980 a claim for personal injury must be brought within 3 years from the date of knowledge.  The family’s claim was more than 2 years out of time.

Discussions were commenced with the company’s insurers and a firm stance was taken by Irwin Mitchell in relation to the fact that the insurers failure to notify the ABI of their policy of insurance for the company would not be to the detriment of the family.

Initially there were arguments raised in relation to limitation being expired and these were successfully dealt with by Irwin Mitchell and the matter of compensating the family for their loss could be dealt with.

Medical evidence was obtained in support of the asbestos exposure that the family’s father had sustained and settlement negotiations were commenced.  The claim was successfully settled a year after the ABI notified Irwin Mitchell of the relevant employer’s liability insurer.

Nicola Handley commented that “claims such as these illustrate the need for there to be a central register of employer’s liability insurers so that families do not have to endure unnecessary and protracted litigation”.  “It is also essential that families always seek advice from a specialist lawyer when they are considering pursuing a claim for personal injury following a diagnosis or death as a result of an asbestos related disease”.

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