Mesothelioma – Who is to Blame?


The Court of Appeal has handed down its judgment in an important test case concerning compensation for people who develop mesothelioma as a result of exposure to asbestos in the workplace. The decision will not only have serious implications for victims of the disease but will also create uncertainty for everyone involved in such cases.
When bringing any action for damages, the first step is to demonstrate who is liable for the injury suffered. This has always been a problem in mesothelioma cases, as the manifestation of the disease normally occurs many years after the exposure to asbestos and sufferers may have worked for several employers in the intervening years. The situation is further complicated by the fact that some of the employers (or their insurers) may no longer exist.
Unfortunately, even after the question over the causation of the disease has been resolved, the decision as to which insurers are responsible has now been obscured by the judgment, which runs to more than 160 pages.
By a majority, albeit for different reasons, the Court held that the wording of the insured defendant’s insurance policy will be critical in determining whether or not an insurer is liable for the claim by the mesothelioma victim.
The nub of the Court of Appeal’s decision is that where the insurance policy states that the liability is insured when the injury is ‘sustained’, the policy under which compensation may be claimed is the one in force when the disease starts to develop. However, where the policy insures the policy holder at the time the disease is ‘contracted’, the policy will cover the insured when exposure to the carcinogenic agent occurs.
This ruling raises a raft of issues. For example, it is likely to lead to protracted arguments over the precise date of injury. Further complications will arise when the employer involved has changed its insurer and the wording of the successive policies is at variance.
An appeal is likely and it is to be hoped that this will bring greater clarity to this already complex area of litigation.
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Partner Note
Durham v BAI (Run Off) Ltd. and other test cases [2010] EWCA Civ 1096.
Referred to as the ‘EL Policy Trigger litigation’.

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