In Slovenian law compensation claims fall under statute of limitations after three years since the victim learned of the damage and the person who caused it. In any case, the claim falls under statute of limitations in five years since the date of accrual of the cause of action (the absolute limitation period). The question that rises in compensation claims is how to deal with cases where the damage only arises after the end of the limitation period, meaning that the damaged person cannot know before the end of the limitation period that he or she has damages from the accrual of the action.
The jurisprudence of Slovenia courts in such cases is discordant. In some cases Slovenian Courts had taken into account that when a person who is incapable of knowing that she or he is suffering from a certain illness or injury, the limitation period does not start to run from the date of accrual of the cause of action but from the day that a person found out about the damage, even if absolute limitation period had passed. But more likely and more often the Slovenian courts dismisses the claims as statute-barred.
Our client sustained a leg injury related to her work in 2001. Her injury was not diagnosed, due to medical mistreatment, until 2008. In 2009 she filed claim against her employer for compensation. Her claim was rejected with the argument that her claim fell under statute of limitation. In light of a ground breaking judgement of European Court of Human Rights of Howald Moor et al. against Switzerland our law office applied to the European Court of Human Rights. We are still waiting for the Court’s decision.
In its judgment of 11 March 2014 (the judgment was final on 11 June 2014), the European Court of Human Rights challenged existing statutes of limitation in Europe and by challenging existing long stop limitation periods the judgment may have an impact on liability regimes.
A man named Howald Moor worked from 1964 until 2005 – date of his death – in a machines factory in Switzerland. From 1965 until at least 1978 he was exposed – due to his work – to asbestos without knowing the risks of such exposure. In 2004 he was diagnosed with a malignant pleural mesothelioma. In 2005 this man died and his two daughters and widow, decided to pursue the claim against his employer for compensation for pain and suffering. In both cases the competent authorities and the appeal courts rejected the claims with the argument that both claims were prescribed and so forfeited. The Swiss Federal Supreme Court confirmed both rulings. The European Court of Human Rights deemed that both decisions breached Art. 6 paragraph 1 of the European Convention on Human Rights.
The European Court of Human Rights (hereinafter „the Court“) first recalled that the right to a fair trial, as guaranteed by Art. 6 para. 1 of the European Convention on Human Rights (hereinafter „the Convention“), must be construed in the light of the rule of law, one of the fundamental aspects of which is the principle of legal certainty, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights. The Court acknowledged that the right to a court remedy is not absolute; it is subject to limitations. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired. Such limitations will not be compatible with Art. 6 para. 1 of the Convention if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim pursued. Limitations serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.
As the latency period for diseases linked to the exposure to asbestos can be very long, the Court observed that the absolute limitation periods of 10 years will always have expired under the current Swiss legislation and jurisprudence. The Court allowed itself to observe that the current legislative project of modification of the limitation periods in Switzerland does not offer a fair solution to this problem. The Court deemed that when it is scientifically proved that a person is incapable of knowing that she or he is suffering from a certain illness, such a circumstance should be taken into account for the calculation of the limitation periods. The Court came to the conclusion that, considering the exceptional circumstances of the present case, the application of limitation periods limits the access to a court remedy in such a way that the right of the plaintiffs was affected in its core substance and led to a breach of Art. 6 para. 1 of the Convention.
It is difficult to forecast the resonance of this decision in Switzerland and other ECHR member states. This judgment challenges and jeopardizes existing limitation periods and might therefore lead to new liability law risks. Apart from asbestos cases, claimants might try to apply the decision to other industries or products potentially associated with diseases with long incubation or latency periods. Allegedly genotoxic and carcinogenic products – such as certain pharmaceuticals, medical devices or mobile phones – may particularly be targeted.
Marko Petek, PhD, Attorney at Law,
Petek Law office Petek Ltd.