28 Mar 2012

Families of asbestos cancer victims win Supreme Court case

Families of workers who died of asbestos-related cancer win their fight for compensation in a UK Supreme Court ruling that could cost insurers £100m.

Thousands of family members related to the victims – employees who inhaled asbestos fibres at work and developed an asbestos-related cancer – intend to claim on insurance policies dating from the late 1940s to the late 1990s.

The ruling could cost insurers £100 million and potentially applies to thousands more insurance claims into the future, lawyers said.

Some 3,000 new cases of asbestos-related cancer are diagnosed every year and an estimated 75 per cent of those are work-related, said Adrian Budgen, a personal injury lawyer at Irwin Mitchell law firm which represents some of the victims’ families.

“It is rare for insurance claims to settle for less than £100,000 and there is no upper limit on compensation,” Mr Budgen said.

The usual rule in negligence cases is that the claimant must establish, on the balance of probabilities, that the defendant’s negligence caused his injury or disease. But the Supreme Court ruled that insurer liability was “triggered” when victims of mesothelioma were exposed to the dust, even if the symptoms developed later.

Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. Compensation claims must generally be made within three years of the diagnosis, which will to some extent limit the number of families who will receive compensation, Mr Budgen said.

Insurers had argued that the policies only covered mesothelioma which manifested as a disease during the relevant policy period. Employers argued the insurance policies apply to mesothelioma caused by exposure to asbestos during the relevant policy period but which developed and manifested itself later.

“The negligent exposure of an employee to asbestos during the policy (insurance) period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation,” Lord Clarke said in the judgement.

The judges, headed by Lord Phillips, ruled on appeals arising from six test cases.

The litigation involved identifying the appropriate “trigger” for employers’ liability insurance policies related to asbestos-related mesothelioma claims, where the wording of the policy required injury or disease to an employee to be ‘sustained’ or ‘contracted’ during the period of insurance