Time barring of industrial injury claims

The Supreme Court has ruled that claims for compensation for permanent injury under the Act on Industrial Injuries are subject to the general 5-year limitation period - even if the industrial injury did not happen after 1 January 2004.

UN SOLDIER WAS INVOLVED IN WORK-RELATED TRAFFIC ACCIDENT

The case concerned a former UN soldier, who had been involved in a traffic accident during his posting in 1986, which was not recognised as an industrial injury. The soldier suffered a cut in the head, a broken nose and minor skin injuries. After the accident, the soldier had mental health problems, and in 2007, he was granted early retirement pension. The question was then whether the soldier's claim for additional compensation for permanent injury and loss of capacity for work under the Act on Industrial Injuries was time-barred, and whether the soldier's mental health problems were wholly or partly pre-existing problems.

TIME-BARRING OF CLAIM FOR ADDITIONAL COMPENSATION FOR PERMANENT INJURY

In 2007, section 36 (2) of the Act on Industrial Injuries was amended with the effect that the limitation period concerning industrial injuries was changed to five years instead of three, which is the general limitation period.

However, the Act on Industrial Injuries only applies to industrial injuries occurring on 1 January 2004 or later, and the soldier therefore claimed that the limitation period was three years instead of five as section 36 of the Act on Industrial Injuries did not apply to industrial injuries from 1986 and, consequently, the industrial injury was therefore covered by the general Statute of Limitation Act.

The central question was then whether the introduction of the special 5-year limitation period in connection with the amendment of the rules in 2007 only applied to claims concerning industrial injuries that had occurred after 1 January 2004 when the current Act on Industrial Injuries came into force. 

Both the Supreme Court and the High Court found that the wording of section 36 (2) and the legislative history behind the act could not conclude that it had been the intention that the 5-year limitation period was to apply to claims relating to industrial injuries occurring after 1 January 2004. This was justified by the fact that the purpose of the extension of the 5-year limitation period was due to the special nature of the area and the necessity to depart from the general Statute of Limitation Act.

On this basis, the Supreme Court and the High Court found that the soldier's claim for additional compensation for permanent injury was not time-barred.

DID THE SOLDIER'S MENTAL HEALTH PROBLEMS CONSTITUTE AN INDUSTRIAL INJURY?

Both the Supreme Court and the High Court found that it was likely beyond reasonable doubt that the soldier had not developed his mental health problems in connection with the industrial injury, but that he had suffered from these problems since he was 16. There was thus no causal connection between the industrial injury and the mental health problems.

COMMENTS

It is worth mentioning that the Supreme Court has a very pragmatic approach to the question concerning time-barring and attaches great importance to the purpose of an extended limitation period in connection with industrial injuries. On this basis, the Supreme Court chose to disregard the commencement provision in section 85 (3) of the Act on Industrial Injuries, and instead the Supreme Court attaches importance to the fact that it does not specifically appear from section 36 (2) of the Act on Industrial Injuries or the legislative history behind this act that the 5-year limitation period is limited to industrial injuries occurring after 1 January 2004.

It is emphasised, however, that the claim was not subject to time-limitation already at the time when the new rules came into force, which was on 1 January 2008.

contacts

Finn Schwarz

Managing Partner

Christian Traberg Bennetzen

Attorney