24.11.08 | High Court victory for mesothelioma victims

Mesothelioma victims have won an important victory at the High Court in their fight for compensation from insurers.

In six combined cases known collectively as the "employer's liability policy "trigger" litigation" or the Durham cases [2008] EWHC (QB) 2692, Mr Justice Burton ruled that victims could claim against the employer's liability insurance policies in place at the time of exposure to the asbestos-related cancer.

Insurance companies argued during the nine week hearing over the summer that victims should claim against the policy in place at the time the cancer developed. The difference is crucial as the gap between inhalation of asbestos fibres and the date the tumor develops can be as long as 40 years.

Various firms involved in the actions, said around 9,000 people were believed to have died of mesothelioma in the UK up to 2003, and current estimates put the number of deaths every year as between 4,000 and 6,000.

"It is common ground that the number of deaths has yet to peak and will not do so for a considerable number of years,"

"The ruling will come as a huge relief to companies facing claims
amounting to hundreds of millions of pounds, which would otherwise have to be met from their own resources, as employers denied liability."

"In this case it was assumed that employer's liability insurance
included claims during the term of the policy, even though the disease materialised many decades later.

"If Mr Justice Burton had agreed with the defendants' arguments it would have made a nonsense of employers' liability insurance and knocked a hole in the protection afforded to employees."

Insurance specialists Kennedys acted for two of the local authorities involved, the London borough of Newham and Huntingdon county council.

Kieron West, head of the occupational disease unit at Kennedys, said Mr Justice Burton had interpreted phrases in the contracts referring to injuries being "sustained" or "contracted" to mean the same as "caused."

West said the defendant insurers had interpreted the words to mean "occurred," relying on the Court of Appeal judgment in Bolton MBC v Municipal Mutual Insurance and Commercial Union [2006] EWCA Civ 50.

West said the Durham judgment could be applied to employer's liability involving other "latent diseases" such as industrial deafness or vibration white finger.

"The overall effect of adopting an inhalation trigger for mesothelioma and other latent diseases is to restore calm to the market and reinstate the relatively straightforward claims handling protocols that have served insurers well for many years," he said.

"Employer's liability policyholders who have been refused mesothelioma cover by "run off" insurers, and who have been forced to settle the underlying claims themselves, are now free to begin recovery proceedings against the defaulting insurer."

West said it was unlikely that the Court of Appeal could hear the case before next summer. He predicted that even if Mr Justice Burton's judgment was upheld, there might be an appeal to the House of Lords.