Historic asbestos ruling restores causation

Insurance policy claims for the fatal disease of mesothelioma are triggered by the date of exposure to asbestos and not the date of injury many years later, the Supreme Court has held.

The ruling, in BAI v Durham [2012] UKSC 14, also known as the “EL Insurance ‘Trigger’ Litigation”, re-instates the longstanding practice of causation, where the employee is covered by the employers’ liability insurance if the exposure that caused their disease took place during its term.

This was common industry practice until the mesothelioma case of Bolton v MMI [2006] EWCA Civ 50, [2006] All ER (D) 66 (Feb), where injury was held to occur at the point where the disease began to manifest. This shifted the insurer’s responsibility from the time of exposure to the time when the tumour developed.

In Durham, the justices unanimously held that the insurance policy terms of “sustained” and “contracted” mean the same as “caused” by exposure to asbestos.

Lord Mance, giving the lead judgment, said the courts should “avoid over-concentration on the meaning of single words and phrases viewed in isolation and look at the insurance contracts more broadly”.

Karl Tonks, vice-president of the Association of Personal Injury Lawyers (Apil) said: “Finally, after six years of farce, what had previously been clearly understood has been confirmed, that the insurer at the time the worker was exposed to asbestos should be pursued for compensation.

“Mesothelioma is a bitter reminder of our industrial past and it is time more support is given to these people who are suffering and dying as a consequence of simply going to work. Those affected by the Supreme Court’s judgment are at least fortunate enough to have found their former employers’ insurers, but hundreds of other victims find that their former employers’ insurance records are lost or have been destroyed, leaving them unable to pursue the compensation they need to help them through their last days.

“Victims have been waiting for nearly two years for action on this from the government, after the previous administration agreed that an insurance fund of last resort should be established.”

Alison McCormick of Outer Temple Chambers, who acted as junior counsel in the lead case of Durham, said the judgment provides “much needed consistency, certainty and clarity”.