The Supreme Court will begin hearing in December an appeal on a
series of test cases relating to when asbestos claims are
'triggered'. The cases will end the uncertainty about
whether victims dying from the asbestos illness, mesothelioma, and
their families will be entitled to claim compensation.
The appeal focuses on the link between exposure to asbestos and the
manifestation of the disease mesothelioma, as well as whether
insurers can avoid claims by relying on the wording of the
policy.
Asbestos was widely used in many industries in the 1950s until the
early 1980s before being finally banned in 1999. However
mesothelioma, a rare form of cancer caused by exposure to asbestos,
can take 30 or more years after the initial exposure to develop.
According to the Health and Safety Executive 2,321 people died in
2009 from mesothelioma and this is set to increase within the next
5 years.
In 2008 the High Court heard a series of test cases brought against
insurers who were refusing to provide cover to negligent employers.
The insurers argued that there was no "injury sustained"
or "disease contracted" during the course of employment
to qualify for cover under the policies because the employees only
developed mesothelioma years later. The High Court disagreed,
finding that there was "injury sustained" and
"disease contracted" when the mesothelioma was
caused, namely at the date of inhalation. As the insurance policies
were in force on that date, the judge found the insurers'
liability to indemnify had been triggered. The insurance companies
collectively appealed.
The Court of Appeal in October 2010 found that the High Court had
been, in part, wrong in their decision and that employer's
liability insurance is "triggered" not by the exposure to
asbestos, but by the development of mesothelioma. Employees did not
suffer or "sustain an injury" when they were
exposed to asbestos as symptoms did not present
themselves until the onset of a malignant tumour. In cases
where the policy wording referred to "disease contracted"
applied, there would be a liability to indemnify because
mesothelioma could be contracted when exposure occurred. This is
almost always decades later by which time there is no insurance in
place to respond to the claim.
The Court of Appeal decision has left mesothelioma victims in a
negative position. Only those whose insurance policies specifically
worded with the phrase "disease contracted" or its
equivalent would be allowed to seek compensation and those who
"sustain injury" unable to claim. This ruling has means
that in every case the exact wording in the insurance policy would
have to be scrutinised carefully.
The appeal to the Supreme Court will provide certainty to those who
are suffering from mesothelioma and their ability to seek
compensation from their employers. (Durham v BAI (Run Off) Ltd.
[2010] EWCA Civ 1096)
Ashfords' Personal Injury Team has extensive experience in all
areas of personal injury claims, ranging from accidents on public
property or at work to road traffic accidents and clinical
negligence. If you are a claimant and would like to discuss a
potential personal injury claim and the funding options available
to you, including the option of a "no win no fee"
arrangement, please contact Stephen Walker, Partner, on 01884
203057.