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Trigger issue cases: some questions and answers
On the 21st November 2008, Mr Justice Burton gave his decision in the employers’ liability trigger cases. This is one of the most important cases to affect mesothelioma sufferers for some time. He found for the claimants and in a clear Judgment set out detailed reasons why insurance companies should now start paying compensation to mesothelioma victims and their families. At the moment, hundreds of people have won their cases but have not been paid waiting the outcome of these cases. The insurers involved in the trigger cases refused to pay as they claimed the policy wordings did not cover the cases. We hope claimants will now be paid, although we will not know until January whether the insurers will appeal against the decision. If they do appeal then claimants will have another long wait until the appeal is heard. What happened in our case Arthur Eddleston worked for Premier Construction for 20 years. He cut up sheets of asbestos and developed mesothelioma. Arthur’s widow, Joan Eddleston, took Premier to court and won but the company went out of business and did not pay any of the money owed to Joan, Premier couldn’t find their insurance documents and it took years of investigation before we discovered they had insurance with Independent. We were all delighted until they told us that Joan would not receive a penny of her money because the policy wording was sustained and not caused. Independent Insurance are in compulsory liquidation and any money owed to Joan should be paid by the Financial Services Compensation Scheme. They have refused to pay up for the same reason as Independent. Joan is now hoping that the clear ruling from Mr Justice Burton will mean the end of her long battle to get justice for Arthur. I have set out below some of the questions that have been asked since the decision Who is affected by the decision in these cases? Anyone who is suffering from mesothelioma or their dependents making a claim against a company which has no assets and is relying on its employers’ liability insurer to meet the claim. Didn’t insurers used to pay these claims? Yes, for 50 years the claims were paid but 2 years ago some insurance companies just stopped paying. Which insurance companies stopped paying? Independent Insurance Company Limited Why did they stop paying? What reason did they give when refusing to pay? The insurers said that the policies did not cover mesothelioma. Although employers had paid premiums to cover their employees against accidents or diseases caused by work, the insurers out of the blue said they were not covered by their insurance. Why not? Because the policies used the words sustain injury or disease or contract disease instead of the word caused. What had they done in the past? Insurers had always paid claims if there had been an employers’ liability policy in force when the employee had been exposed to asbestos, it did not matter whether the wording was caused, sustained or contracted, they believed that mesothelioma was the result of the exposure to asbestos and so was covered by the policy. What did the Judge decide? That the words sustained or contracted mean caused. What is the effect of the decision? Anyone with a mesothelioma claim arising out exposure to asbestos at work whose employer no longer exists or has no assets but who was insured at the time of exposure should now be paid out by the insurance company who provided the employers’ liability policy. This decision means that the insurers will not be able to avoid their responsibility to the insured because of the policy wording. What else did the Judge decide? The Judge ruled that the starting point for mesothelioma occurring is 5 years before diagnosability. He decided that the injury/disease occurred 5 years before diagnosability rather than as previously thought, 10 years. 5 doctors gave the Judge their views in Court and explained how a tumour grows. After listening to them the Judge decided that 5 years before diagnosibility the tumour was already so established that it was bound to increase in size and eventually result in death Will this affect other cases? It is likely to affect public liability cases. If you would like me to come and talk to you about the decision I am happy to do so, please ring me on 0161-834 1251 or 0775730348. If you would like a copy of the Judge’s decision please let me know. Carolann Hepworth
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