Safety Catch Applied to the “Trigger Issue”
21st November 2008 – Local charity Asbestos Support West Midlands welcomed the judgment announced today which confirms that insurers who were “on” risk at the time someone was exposed to asbestos are liable to pay compensation.
In this test case some insurers argued that the wording of employers’ liability insurance policies says that the insurance is only “triggered” when an asbestos disease develops and not when the asbestos victims was exposed to asbestos.
Essentially, this is an argument between insurers about who should pay. But, the interpretation of the effective date of an insurance policy is crucial to asbestos victims. Because asbestos disease does not develop until decades after exposure to asbestos occurred, it is likely that the employers will no longer be trading and there will no longer be an insurer to pay compensation when an asbestos disease develops. This would have a devastating effect on asbestos victims.
This judgment puts things back to the way they were: insurers who were on risk at the time of exposure must pay compensation.
Steve Peacock, Regional Industrial Organiser for Unite the Union, is one of the people who set up the charity, which gives help and advice to those suffering from asbestos related diseases. He lost his father to the deadly cancer mesothelioma; whose only known cause is exposure to asbestos.
Welcoming the ruling Steve said: “I don’t want anyone to have to go through what my father suffered. Asbestos killed him and devastated my family. Sufferers need help and advice, not to be caught as ‘collateral damage’ in an insurers’ war.”
Doug Jewell from Asbestos Support West Midlands said: “Lets hope this judgment is the end of attempts by some insurance companies to deny much needed compensation to asbestos victims. It’s time they became less interested in saving money and more in living up to their responsibilities.”
However it is feared some insurers will continue to escape liability. This judgment does nothing to alter the underlying injustice where insurers continue to avoid liability for paying compensation simply because employer’s liability insurance cannot be traced. There should be a central register of insurance, as there is for example for TV licenses or motor insurance.
Cases delayed pending this judgment. Payment of compensation has been delayed pending the outcome of this case and many mesothelioma sufferers have died while waiting for the Court’s decision.
Asbestos Support West Midlands
138 Digbeth, Birmingham, B5 6DR
0121 678 8883 www.asbestossupportwm.org
• Asbestos Support West Midlands is a project established and operated by the registered charity- the West Midlands Hazards Trust (charity registration number 1125322). It gives help and advice to those suffering from asbestos related diseases in the West Midlands.
• Mesothelioma is a fatal tumour of the lining of the lung or abdomen, caused almost exclusively by asbestos, with a life expectancy from diagnosis of about 12 months. In 2005, 2,039 people died from mesothelioma. 90,000 people are expected to die from mesothelioma by 2050 from past exposure to asbestos since the epidemic began in the 1960s. About 60,000 people are yet to die from mesothelioma from past exposure.
• The “trigger Issue” case commenced on the 3rd. June is one of many test cases in recent years launched by the insurance industry to limit its liabilities for asbestos disease.
• In the Fairchild case (2002) the House of Lords overturned an attempt by insurers to say that since no one could say which deadly asbestos fibre killed a mesothelioma sufferer, no employer could be found liable.
• In the Barker case (2006) the government overturned a House of Lords decision which allowed apportionment of damages between guilty employers. This would have meant that compensation would have been proportionately lost where employers were no longer trading.
• In the Pleural Plaques case (2008) the House of Lords abolished compensation for pleural plaques, which had been compensated in law for over 20 years.
• Where a motor traffic victim is injured by an uninsured driver, compensation is guaranteed via the Motor Insurers Bureau – an insurance fund of last resort. Where workers are injured there is no such protection.
• Employers liability insurance became compulsory in 1972 and almost all employers have held insurance but insurers hide behind the fact that there was no system to register insurance details.
• Government pays lumps sum payments to asbestos victims who cannot trace their insurers despite the fact that the HSE have said that over 99% of employers held employers liability insurance.