Asbestos Claims And Employers Liability Trigger Litigation
Mesothelioma is an unpleasant disease caused by the exposure to asbestos dust. It is invariably fatal often within a short period of time from the first appearance of symptoms.
Most victims (but not all) were exposed to asbestos dust during employment and often 20 / 30 years or so before symptoms first appear.
Not all those exposed to asbestos will contract mesothelioma but all those exposed are at greater risk of doing so.
When a claim arises is it the employer’s insurer at the time of exposure (if they can be traced) or at the point symptoms occur who should deal with it?
Further if it is the latter at what point leading up to formal diagnosis has the disease irreversibly taken hold.
These issues were all canvassed in what has become known as the ‘Trigger’ litigation which came before the Supreme Court in March this years. The Employers Liability Trigger Litigation (2012) UKSC 14
The ‘trigger’ referring to the issue of what triggers the potential liability to indemnify an insured under an Employers Liability insurance policy
The Court considered in great detail the terminology used in a number of employers liability insurance policies.
In short the Court determined that for those exposed at work it was the point of exposure that was relevant as this was when the injury was ‘caused’ even though at that point the individual was only at risk and had not actually developed the illness.
For members of the public exposed it may well be when the disease occurred (following Bolton Metropolitan MBC v MMI (2006) 1WLR 1492) and in that event it was probably 5 years before the onset of symptoms that the disease became irreversible (following obiter Durham v BAI Ltd (2011) PIQR P2) and therefore the appropriate year of cover to respond to a claim.
In each case however the exact wording of the policy will need to be examined.
Does this Judgement create a potential liability for the risk of causing mesothelioma? Almost certainly not as the policies were written to respond to the ‘causing of an injury’ not a risk of injury.
Whether bringing or defending a personal injury claim it is important that the correct insurer is identified. That may not always be possible for an employer 30 years ago and if the employer itself is no longer in existence or otherwise without assets the recovery of compensation will be in jeopardy.
Author: Martin Pettingell
For further advice please contact our Serious Injury team.