Supreme Court to decide when asbestos claims can be made

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.     

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.