Appeal judges have failed to resolve a dispute over a High Court ruling that would have entitled thousands of people exposed to asbestos at work to claim compensation.
In a split decision today (8 October) that will lead to huge uncertainty among asbestos sufferers, the Court of Appeal has ruled that, in certain cases, an employer’s liability insurance is “triggered” not by exposure to asbestos but by the development of asbestos-related illness, such as mesothelioma, the symptoms of which may not present themselves for decades. In some cases, however, the judges ruled in favour of asbestos claimants.
The original nine-week court battle two years ago examined a number of test cases, where run-off insurers for employers that had ceased trading refused to pay compensation to asbestos victims under the terms of the relevant insurance liability policy.
They disputed on the grounds that the insurance policies did not make them liable to pay damages at the time a worker was exposed to the risk but that compensation should be paid out by the insurer providing cover at the time a worker developed symptoms of the disease.
The High Court ruled against the insurers, holding them liable at the time of asbestos exposure. The Appeal Court’s conclusion that this decision should not apply uniformly means that, in every case, the exact words used in the insurance contract will have to be studied, and could leave many victims with no compensation. According to the BBC, the 366-page judgement is so complicated that some of the victims’ solicitors said they struggled to understand it.
Head of asbestos policy at Thompsons Solicitors, Ian McFall, explained: “This decision means some insurers are required to pay while others are not, depending on words such as “injury sustained” or “disease contracted” used in insurance contracts written decades ago.”
Helen Ashton, a lawyer from Irwin Mitchell, who successfully represented one of the lead claimants in the case, said huge confusion remains. She said: “Without a uniform judgment it remains unclear which victims are entitled to access the justice they deserve, and it really is pot luck. For many, it will mean delays, more legal uncertainty and more confusion, as the very wording of their employer’s insurance policies would need to be reviewed to see whether they can make a claim or not.”
Unions reacted with disgust at the verdict and pledged to continue the fight, which could see many cases referred to the Supreme Court.
Unite joint-general secretary, Derek Simpson, fumed: “This is the ultimate insult for people suffering, or who have watched a loved one suffer, a painful and degrading death from industrial disease. Insurers banking premiums and then escaping paying out compensation by relying on policy small print is obscene.
“Asbestos victims now face more uncertainty, which is the last thing they need. Unite will continue the legal and political fight to achieve justice for our members and all victims of asbestos.”
Echoing Simpson, UCATT’s general secretary, Alan Ritchie, said: “The Supreme Court must act swiftly and restore confidence in the judicial system, by overturning this judgement. Hundreds of people are having their cases delayed because of this decision. Sadly, many of them will die before the trigger case can be resolved and compensation restored.”
The union fears that, as the judgement stands, it could be used by the insurance industry to contest other forms of occupational-injury and illness compensation.
However, the Association of British Insurers (ABI) insisted that the test cases were not about “insurers versus victims” but about which insurer should be liable to pay compensation. A spokesperson for the group told SHP it wants the current system, which places liability on the insurer providing cover at the time that the risk occurs, to continue.
Derek Simpson got it just right when he said that this is obscene.
This is the work of financial institutions who not content in causing global financial turmoil are now turninhg their attention to robbing the victims of criminal acts from any financial recompense in the latter stages of their lives.
These are the ones who mismanged their affairs so badly that they are now out of business and are seeking to protect their grubby pockets.