High
Court Victory for Asbestos Victims in "Trigger Issue" Litigation
Test Case
As
previously reported to Branches and safety representatives the High Court
has been considering test cases brought by insurers who sought to claim
that their liability only arose once a person developed Mesothelioma
rather than from when the person was exposed to Asbestos.
Following
a nine-week court hearing in the 'lead case' [O'Farrell -v- Excess
Insurance Company Limited] in a group of cases collectively known as the
Employer's Liability Insurance Policy "Trigger Issue"
Litigation, the judge has now ruled in favour of the sufferers and their
families.
The
argument before the Court concerned the proper interpretation of
specific clauses used in employer's liability insurance
policies sold many years ago and whether it was
intended that these policies should cover Mesothelioma claims or not. The
main issue was whether a person could claim from the insurance company who
covered their employer at the time they were exposed to Asbestos (which
could be many years previously), or only when they developed the disease
(which was often after they had changed or moved jobs or retired). Often
the time lapse between exposure to the deadly Asbestos dust and the
development of Mesothelioma can be as long as 40 years.
The
High Court decided that the traditional interpretation of
insurance phrases such as "injury sustained" or
"disease contracted" should stand, and that the insurer who
provided the insurance cover at the time the employee was exposed to
Asbestos should continue to meet the claims.
Mesothelioma
victim Charles O'Farrell was a retired trade union member of 'Unite' who
died in 2003 after a long and painful illness. He was exposed to Asbestos
while working as a steel erector for Humphreys & Glasgow Limited from
1964 to 1967.
The
A
number of other Insurance Companies then joined the argument in similar
cases, denying liability to pay compensation in Mesothelioma cases and
arguing that the policies they sold, to insure employers against liability
for workers who were injured or suffered illness at work, were only
"triggered" at the time of the development of the disease rather
than by the past exposure to asbestos. Their argument breached the
fundamental principle that the person who caused the damage (i.e. by
exposing workers to asbestos) pays compensation and will be indemnified by
their insurer. For decades the insurance industry has accepted in
Mesothelioma cases that the Employers' Liability insurer who was providing
cover at the time the Asbestos exposure occurred is liable to respond to
the claim.
In
this landmark High Court test case the rights of vulnerable Asbestos
victims develop the fatal disease, Mesothelioma, caused by exposure to
asbestos in the work place has been successfully defended from insurers'
attempts to avoid their liabilities. Victim's right to compensation has
been preserved.
The
High Court (on 21st November 2008) ruled that Employers'
Liability insurers remain liable to pay compensation for Mesothelioma
caused by exposure to asbestos in the work place if they insured the
employer at the time the asbestos exposure occurred.
This
important test case to decide the true meaning and effect of the
employer's liability insurance policies will be a great relief for many
asbestos victims and their families and a victory for fairness, justice
and common sense.
If
the High Court had found in favour of Excess Insurance, Charles
O'Farrell's family would not have received any compensation and it would
also have meant that thousands of Mesothelioma victims and their families,
now and in the future, would have been deprived and unable to obtain
compensation because by the time the worker developed the disease, if the
employer who exposed them to asbestos was defunct, no insurance would
exist to pay the claim.
The
successful conclusion to the test case means the family of Charles Michael
O'Farrell will be a step closer to receiving the £152,000 compensation
damages awarded by the court. The decision however may be appealed and may
eventually be taken to the House of Lords. After the judgement Charles
O'Farrell's family expressed their disgust at the lengths the insurers
went to in order to avoid paying out.
The
trigger issue case has frustrated and delayed the process of obtaining
compensation for people who are dying from Mesothelioma and for the
families of those who have died.
Mesothelioma
is a cancer of the lining of the lung caused by exposure to Asbestos.
There is no cure and around 2,000 people a year are diagnosed with the
disease in the
[Note: Compensation for the Asbestos-related condition 'Pleural
Plaques' was ended last year by the House of Lords as a result of a test
case brought by the insurance industry. People with pleural plaques had
previously been entitled to compensation since 1982. It is estimated that
as a result of ending the right to compensation for pleural plaques the
insurance industry has saved approximately GBP 1.4 billion. Following a
Trades
Yours
sincerely
National
Health, Safety & Environment Officer
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