News

May

Insurance "Trigger" in Asbestos Disease Claims

 

The arguments in relation to which insurer should pay compensation to an individual who was exposed to harmful amounts of asbestos dust in the past, are still ongoing.

This is despite the decision reached by Mr Justice Burton in the “trigger litigation” cases in Durham v BAI (Run Off) Ltd [2008].

                                                                

Historically, it has always been the insurer who was on risk for companies at the time workers came to be exposed to asbestos that would be liable to pay compensation to sufferers of asbestos related illnesses.

However, the insurance industry has attempted to take steps to argue against this common sense approach.

Problems for Sufferers

The insurers in the so called “trigger litigation test cases” argue that it is the insurers on risk at the time the worker develops symptoms who should pay the compensation. In most cases involving asbestos related illness this could be decades later when the company in question no longer trades and insurance is difficult, if not impossible to trace.

Claimant’s solicitors have expressed real concern regarding the impact of any decision which supports the insurance industries views on this most important of issues.

Law as it stands

In the above quoted test case the Defendant insurers had reinterpreted the law set down in previous cases spanning a period of 30 years and argued that injury was not “sustained” at the date of inhalation of asbestos dust, but at the date the tumour occurs in the sufferer in the case of mesothelioma.

                                                            

Much discussion arose in respect of the precise policy wordings contained within the insurance documents themselves. The judge concluded that any employers’ liability policies with the “sustained wording” within them should be construed on the basis that injury was caused at the time workers inhaled the asbestos dust. It was therefore the insurer that was on risk at the time of the negligent exposure that would have to pay the compensation to the Claimants.

The judge found that an insurer takes the risk of the insured’s liability increasing or expanding as a result of legal developments as had occurred in the case of asbestos disease cases.

Whilst the Claimants succeeded in their quest to obtain a judgment for damages against the Defendant insurer on risk at the time of the inhalation, the judge granted the Defendant insurer permission to appeal.

 

                                                              

 

At the time of writing it has been confirmed that the Defendant insurers will do just that and appeal the decision reached to Court of Appeal level.

This leaves a degree of uncertainty in respect of this aspect of the law which could have far reaching consequences for any that suffer with “long-tail” diseases such as asbestos related illnesses.

It is likely to be a further 3 to 9 months before the Court of Appeal’s decision is known and whether it adopts the same line of thinking as in the previous “trigger litigation” decisions.

Oliver & Co Solicitors are experts in the field of asbestos disease claims and have recovered millions of pounds of compensation for clients suffering with mesothelioma, asbestosis and diffuse pleural thickening.

Anyone requiring advice on the potential to pursue an asbestos disease claim should not hesitate to contact us for free legal advice without obligation.

 

 

 

Useful Links

For more information and advice click on one of links below:

British Lung Foundation	The British Lung Foundation is the only UK charity working for everyone affected by lung disease. For help and advice on diseases such as Mesothelioma and Asbestos Lunch Cancer.
Macmillan Cancer Support	Provide practical, medical, emotional and financial support and push for better cancer care
Mesothelioma UK	Funded by Macmillan Cancer Relief provides info & resources for patients and families including causes, diagnosis, treatment options and clinical trials.
MyWavelength.com	Get help & advice from like minded people.
June Hancock Research Fund	Charity in memory of June Hancock also providing help & advice.
Oliver & Co Solicitors	Our company website.