Triggering justice

The Supreme Court handed down its keenly anticipated decision in the employers’ liability trigger litigation (ELTL) mesothelioma test cases on 28 March (BAI v Durham [2012] UKSC 14). The court examined the various forms of wording used in employers’ liability (EL) policies and unanimously held that there is no legal difference between policies which are written on an “injury sustained/contracted” basis to those written on an “injury caused” basis. Regardless of precise wording, policy cover for mesothelioma claims is triggered by the date of exposure to asbestos. This sensible and humane decision clears up the confusion caused by the Court of Appeal’s earlier ruling in the ELTL cases, but still leaves some questions unanswered.

The trigger litigation featured six test cases concerning the scope of an insurer’s obligation to indemnify employers against their liabilities to their employee victims. Difficulties first arose following the 2006 public liability (PL) mesothelioma case of Bolton MBC v Municipal Mutual Insurance [2006] EWCA Civ 50. Bolton held