The complexity of asbestos claims limitation

The challenge of limitation 

Every year, over six hundred new asbestos victims approach the IAS. These victims were typically exposed to asbestos in the second half of the previous century. As a result, the claims of asbestos victims are now more often expired than before, as the limitation period for asbestos damage is thirty years. This means that more than four out of five (alleged) claims were limited in 2022. 

The IAS has long advocated for eliminating the thirty-year limitation period, at least concerning asbestos damage. However, this has not been achieved thus far. Parties involved in the IAS, including the Association of Insurers, have now agreed that insurers will no longer rely on limitation in asbestos cases. The agreement binds all insurers who are members of the Association (approximately 95 per cent of the insurance sector). This leads to a significant difference between insured employers on the one hand and "uninsured" employers on the other. The nuanced assessment model developed in legal precedents still applies to uninsured employers, resulting in much uncertainty and debate. This is particularly undesirable in asbestos cases, where victims often have a limited time left to live, and there is a significant need for promptness and clarity. 

The partial dispute procedure

Instead of a change in the statutory limitation period, the Dutch Minister for Legal Protection suggested focusing on the "partial dispute procedure", in which the judge could expedite the limitation issue. To test the partial dispute procedure, the IAS initiated a pilot program in which six cases were selected where the limitation issue was at play. Subsequently, the Erasmus School of Law was asked to evaluate this pilot program independently. 

The results of the pilot 

After the pilot program concluded, the partial dispute judge made rulings in three out of the six cases under investigation, while the other cases did not reach the finish line for various reasons. In one case, the judge ruled that the plea of limitation was unacceptable, while in the other two cases, the judge decided that the case was not suitable for a partial dispute. This was due to the complexity and uncertainty of assessing a limitation period in relation to the employer's liability. "In principle, a partial dispute procedure is not suitable for resolving factual issues, as there is generally no room for further evidence in that procedure", says Hebly. To decide whether the plea of limitation is unreasonable, the judge must assess at least seven different factors. In two out of the three cases, the judge felt unable to rule on the degree of blameworthiness, one of the relevant factors, due to ongoing disputes about the facts. Since partial dispute procedures generally do not allow for further evidence, uncertainty about the facts led to the rejection of the request. 

All of this suggests that the partial dispute procedure, as it stands, cannot provide a structural solution to the problem of complex limitation debates in (uninsured) asbestos claims. Hebly points out that limitation is often not the only issue the judge must decide. "There may be cases in which the facts are not in dispute, and the parties only debate whether a plea of limitation is allowed. In such cases, a partial dispute could help. But I suspect this is more the exception than the rule. Furthermore, the relationship between the limitation issue and liability is quite complicated: after a partial dispute over limitation, there may still be disputes about liability, compensation, etc." 

Alternative approaches to assisting asbestos victims with limited claims do not offer a solution, according to Hebly. "I have the impression that we have reached the endpoint. It is simply a painful rule: in principle, a mesothelioma claim is limited because the disease often arises after the limitation period has expired. This period starts from the time of exposure. The Supreme Court made a groundbreaking ruling in 2000 when it made "breaking" that period possible, but dependent on all the case circumstances. In practice, this means a lot of uncertainty and many disputes have arisen over the past two decades." 

"We must guard against tunnel vision” 

Hebly emphasises that it is not so simple for lawmakers and policymakers to solve the limitation problem in asbestos cases as time passes. It becomes increasingly difficult to judge what happened and whether the employer met the duty of care that was in place at the time. Limitation serves to prevent such complicated cases. Hebly says: "We must guard against tunnel vision: if you completely eliminate the long limitation, the cases themselves are not necessarily resolved. After all, these are events that occurred a long time ago, and there is little certainty about them now. Of course, you would want everyone who is entitled to compensation to be able to claim it. But limitation serves an important purpose: the rule also ensures that we don't have to concern ourselves with events that happened so long ago that there's really not much sensible to say about them. It's ironic that the limitation law was amended in 2004: for new cases of personal injury, there is no longer a long limitation period. The asbestos tragedy led to this change, but the painful part is that this change was not retroactive, and therefore, it offers no solution for asbestos victims. Opportunities existed back then. And if we want to revisit this twenty years later, it also raises all sorts of difficult delineation questions. So, I think it is a ship that has sailed. A significant achievement is that, by and large, most insurers, albeit late in the 'asbestos drama', will no longer rely on limitation."