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SUPREME COURT RULING - ASBESTOS EXPOSURE AND INSURANCE POLICY INTERPRETATION

Blog Author: Simon Smith BA (Hons)

 

In 2011 the Supreme Court considered the cases of Willmore and Costello and re-examined the established approach relating to the level of exposure to dust and fibres, the test had until then been that the amount of exposure had to double the risk of suffering an associated illness and established a much lower hurdle.
 
It is good to know that the Supreme Court continues to pave the way with its approach to cases involving victims of exposure to asbestos dust and fibres.
 
I had previously provided some commentary on the most resent issue before the Court (Edwards v Excess Insurance Company Ltd) 19.08.2011.  In essence the Court had been asked to rule on the construction of the wording of the insurance policies and overlay the particular circumstances.
 
Exposure to asbestos dust and fibre and the onset of an asbestos related illness, which attracts an award of compensation, are usually many years apart.  By then the companies responsible are often long gone and therefore the only hope of compensation is to identify their insurers.
 
What these insurers then subsequently raised was that the wording of their policies stated that they would compensate victims who suffered or sustained injury during the course of the employment.
 
What they argued was that it was the date the asbestos related illness began, many years after exposure to the dust and fibre and, therefore, outside the period covered by the insurance policy that was the date injury was suffered or sustained, not the date of exposure to the asbestos dust and fibre, i.e. when the policy was in force.
 
The Court of Appeal agreed with them, which is why the matter subsequently found its way to the Court of Appeal.
 
In a 62 page summary, Lord Mance provides the lead decision, unanimously supported by the other four Lords - Lord Kerr, Lord Clarke and Lord Dyson and Lord Philliips (President) on the interpretation of the policies and dismisses any prospect that insurers can argue that exposure during the course of the policy does not amount to suffering or sustaining the illness complained of.
 
A copy of this can be viewed at:
 
http://www.supremecourt.gov.uk/docs/UKSC_2011_0031_Judgment.pdf
 
However, Lord Philip goes on to consider a satellite issue that arose during the course of proceedings, more associated with the inter-relation between the wrongdoing of employers and the imposition that this places on their insurers.
 
Peculiar to asbestos exposure, which has always been the case, is that it is not possible to identify the particular fibre that causes the subsequent condition so it is not possible to identify precisely where the exposure occurred (usually with which employer but this is not always the case).  As a consequence it then follows that the insurance policy period when the relevant exposure occurred is equally impossible to define and yet the insurer is burdened with this, not the employer.
 
Lord Philips was, I think, keen to stress that the findings in this case are not to be seen as making a leap from preventing an employer escaping liability, due to the lack of scientific uncertainty, such as with asbestos exposure, in order to make the leap that the insurers are effectively automatically liable. 
 
This represents a significant outcome for Claimants, preventing what some would argue as being nothing more than an escape route for the insurance industry on a technicality.
 
Simon Smith is a senior personal injury and industrial disease solicitor at Goodmans Law.  You can e-mail Simon at sps@goodmanslaw.co.uk who is always happy to help and advise.
 
For more information please contact us on 0800 073 0385 (0151 257 6000).  Our First Response Team is available from 8am to 8pm every business day.
 

 

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Previous Comments:

"Very good article, Simon. Well written and easily understood. Coming from South Africa, I have come across many miners who developed asbestos related illnesses later in life, but could never get compensation because the the companies had closed or the insurance policy wording was written to exclude their circumstances. Regards"
Vic Williams - 31 Jul 2012 13:30

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