In its judgment of 11 March 2014, the European Court of Human Rights challenged existing statutes of limitation in Europe.[1]

The Court granted an asbestos liability claim brought forward by a Swiss claimant who argued that a particular ten year long stop limitation period under Swiss federal law is null and void.  The claimant successfully raised the argument that – due to long incubation or latency periods of asbestos-related diseases – the ten year long-stop is in violation of the European Convention on Human Rights ("ECHR").

By challenging existing long stop limitation periods, the judgment may have an impact on liability regimes. 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.

FACTS

The Swiss claimant, Ms Renate Anita Howald Moor, is the second wife of Mr Hans Moor, who diseased in November 2005, allegedly as a result of an asbestos exposure.

It is alleged that Mr Moor was exposed to asbestos between 1965 and 1978 whilst working in a machinery plant in Switzerland.  However, under Swiss federal law since 1975/1976, an element of his asbestos work – in particular the spraying of asbestos – was prohibited.

In May 2004, Mr Moor was first diagnosed with a malignant pleural mesothelioma (a highly aggressive malignant tumour) caused by asbestos exposure.  As a result of this disease, he died in November 2005.

In November 2005, the claimant filed applications and a lawsuit against the Swiss National Accident Insurance Fund (caisse nationale suisse d'assurance en cas d'accidents ("CNA")) seeking immaterial damage payments for her husband's pain and suffering.  According to the claimant, CNA was liable under Swiss federal tort law – particularly under the so called Liability Law of the Confederation (Verantwortlichkeitsgesetz) – due to an alleged occupational health and safety failure. One of CNA's major defence arguments was based on Swiss statute of limitations provisions. Pursuant to Swiss federal law, a long stop of ten years exists.  This means that – regardless of a person's knowledge or the outbreak of a disease – any asbestos claim would be ultimately statute-barred ten years after the end of the asbestos exposure at the latest.

Numerous Swiss authorities and courts denied the claimant's claim.  On 29 January 2010, her lawsuit was finally dismissed by the Swiss Federal Tribunal (Bundesgericht or Tribunal fédéral), the highest civil court in the country.  The Federal Tribunal held that the claim was statute-barred as at least 27 years had passed between the asbestos exposure and the claimant launching legal action.

As a consequence, in August 2010, the claimant filed a lawsuit before the European Court of Human Rights claiming an ECHR violation.

COURT DECISION

The European Court of Human Rights granted the claim awarding 15,000 CHF (approximately 12,000 Euros) in compensation for pain and suffering.

In doing so, the Court held that the respective statute of limitations long-stop under Swiss federal law was null and void due to a violation of the ECHR.

The Court held that the right to a fair trial as well as the right to access courts are guaranteed by Article 6 paragraph 1 ECHR.[2]  According to the Court, this provision – inter alia – protects a claimant's right to seek compensation for civil wrongs sustained by him/her. In doing so, on the one hand, the Court generally recognized and confirmed its appreciation for national statute of limitations provisions including long-stops. However, on the other hand, according to the Court, in order to comply with the ECHR, long-stops should pursue a legitimate aim and should be reasonable. In so finding, the Court noted that the incubation or latency period of certain asbestos-related diseases can be several decades long.  It held that there is scientific evidence that the claimant was not able to gain knowledge of the asbestos disease prior to the expiration of the statute of limitations period.  Therefore, according to the Court, under the Swiss ten year long-stop, claimant's claim was doomed to fail from the start.

However, it should be noted that pursuant to Articles 43 and 44 ECHR, the judgment has not yet become final. Each party may lodge an appeal before the Grand Chamber of the European Court of Human Rights.

COMMENTS

There are very strong arguments for being critical of the ECHR judgment.

The basic idea behind the implementation of a long stop limitation period is to ensure legal certainty for parties to potential claims.  By implementing long stops, lawmakers create a balance between claimants' and defendants' interests.  As a consequence, for the affected individual claimants and their particular cases, long stops might preclude their claims.  However, in doing so, long stops serve an objective public interest despite the effect this may have on a particular claim.

Moreover, by implementing long stops, lawmakers explicitly accept the fact that particular individual claims will be statute-barred regardless of claimants' knowledge or their ability to launch legal actions in time. If long stop periods are extended to such an extent that no claim could be statute-barred, the purpose of such provisions would be defeated.

Long stop limitation periods also prevent potential unfairness in the availability of evidence. As time passes, it becomes increasingly difficult for both claimants and defendants to find appropriate evidence – especially witnesses – to state their case.  Without reliable long stop limitation periods, a sophisticated approach to the preservation of documents and other evidence is problematic.  Moreover, long stops allow potential defendants to develop appropriate and defensible document preservation policies.

Further, many existing long stop limitation periods are an indivisible feature of a conclusive and well considered – and therefore well balanced – liability regime.  As an example, the European Product Liability Directive also includes a long stop limitation period of ten years. [3] This is an integral feature of a strict liability regime which ensures a balancing of claimants' and defendants' interests. Removing the long stop would require a review of the Directive since it would disturb the "delicate balance" of consumers' and manufacturers' interests as a founding principle of the Directive. [4]

This judgment might have impact on the statute of limitations landscape, especially in ECHR member states. It challenges and jeopardizes existing limitation periods and might therefore lead to new liability law risks. Claimants might try to apply the decision to other industries or products potentially associated with diseases with long incubation or latency periods.  As noted above, there are very strong arguments for being critical of the judgment.  Companies should closely monitor upcoming developments and might want to align their potential future risk management and defence strategies accordingly.