The Supreme Court of the United Kingdom is due to rule tomorrow on a case which has huge implications for compensation recoverable by the victims of asbestos exposure in the UK.
Four insurance companies have asked the Court to restrict an employer’s liability and therefore their liability to pay compensation. They want the time to run from when the asbestos related cancer, mesothelioma, starts to develop. This is compared to the current situation of time running from when victim was exposed to the dust. If successful this means that employers and their insurers of companies or organisations who have ceased to trade or simply no longer exist cannot be held liable for the illness. This is because they develop decades after exposure to the dust and long after the employment had come to an end. This would leave some victims and their families with no real hope of obtaining compensation despite employers having taken out Employer’s Liability Insurance for just such occurrences.
In an unusual move for insurers, the bigger companies have distanced themselves from this action leaving only MMI, Builders Accident, Excess and the Independent Insurance Company as the only four arguing this point.
Some asbestos Claimant lawyers feel this is the most important test case in recent years and possibly in the history of asbestos litigation. This is understandable as so much rides on the outcome.
Payments for the asbestos related cancer mesothelioma have been made since 1967. The insurance industry have and continue to try their hardest to come up with innovative and inventive ways to try and divest themselves of the liabilities for which they were paid to insure against.
The dangers of asbestos dust have in fact been known since the early 20th Century and in fact as early as 1898. Continued studies lead to an article in the Times newspaper in 1965 which gave employers little or no room to avoid liability when they continued to expose their employees to asbestos dust. As a result of their ignorance of the dangers, literally hundreds of thousands of labourers and tradesman in various industries including dockyards, power stations, construction, steel foundries and even those at home who washed their husband’s clothes were simply given no choice but to either work with the dangerous substance or join the dole queue.
The case in the Supreme Court has become known as the Trigger Case. The general feeling is that it is highly unlikely that the Court will rule against the victims as the information available was so clear that continued exposure to the dust even in relatively small amounts was enough to breach their duty to protect their employees.
The result of the court case is awaited by both sides although it is possible the insurance industry are not perhaps quite as eager at this stage as victims.
Asbestos Industrial Disease Partner, Andrew Stinchcombe, “has said, “this case is incredibly important and the result could have wide implications for both the victims of asbestos and their families when seeking the compensation to which they are rightly entitled for. Although we are confident that the decision will probably go the way of victims this does go to show how some Insurers are trying to avoid liability on what are spurious and sometimes desperately unfair grounds”.
Graeme Chisholm, Swindon Asbestos Disease Partner, has added, “as Andrew says this decision is hugely important. We have fought for many years to obtain compensation which is often still inadequate for the loss families and victims suffer. There is still no compensation fund of last resort as there is for people claiming against motorists who have no insurance and for the insurance companies to be this cynical just shows the lengths they will go to, to continue to avoid paying what is, in reality, the very reason for having employer’s liability insurance”.
The decision will be delivered by the Supreme Court tomorrow and undoubtedly there will be further analysis.