comercrawley solicitors

21.11.2008

Asbestos cancer victims win court fight for insurance awards

Thousands of victims of a fatal asbestos-related lung cancer are in line for six-figure sums in compensation after a victory today that lands insurers with a multi-million pound bill.

In a keenly-awaited High Court ruling, Mr Justice Burton said that insurers were liable from when victims were exposed to the asbestos dust, and not the much later point when the disease becomes apparent.

Thousands of families of workers have already died from the disease, which can take up to 40 years to manifest itself. But once diagnosed, death occurs on average within 14 months.

In recent years there have been 2,000 deaths a year and it is estimated that the rate of deaths will continue into 2011 to 2015, when the numbers will peak.

The families were forced to bring their legal challenge after a Court of Appeal ruling two years ago that liability was ‘triggered’ when the disease actually emerged, not at the time of exposure.

Until then, insurers for the employers of the victims had paid compensation for the fatal lung disease mesothelioma on the basis that their liability arose at the time when a worker was exposed to asbestos dust.

But as a result of the Court of Appeal ruling, insurers stopped paying on a ‘time of exposure’ basis and argued they were not liable because the risk cover they provided 40 years ago was no longer in force.

This summer, during a marathon nine-week legal battle involving more than 20 individual counsel and their teams of solicitors, Mr Justice Burton was asked by employees and employers to rule that the appeal court decision, made in a case of occupiers' rather than employers' liability insurance, should not be applied generally.

Yesterday in a complex and lengthy judgment running to more than 300 paragraphs, the judge said: ‘I recognize that the date of manifestation, the date when symptoms arise, when the tumour is diagnosable, is clear and identifiable, even on the present state of medical knowledge.

‘However, if I am looking for when injury takes place/occurs, or when disease is present, I do not consider that it can be left as late as the onset of symptoms.

‘It is plain that there is, albeit unknown to the sufferer, an injury and a disease present in his or her body well before it makes itself manifest by his finding difficulty in breathing.’

The case was brought by six test claimants led by Ruth Durham, whose father died in November 2003, aged 73, after developing mesothelioma.

Mrs Durham, from Nottinghamshire, said: ‘I am hugely relieved to hear of today's court decision, which will see justice done for my father and hundreds of other mesothelioma sufferers now and in the future.’

‘I miss him every day and no sum of money will ever compensate for the terrible suffering that my father endured. However, I hope that by pursuing this legal action, which will help others in future, it will make his suffering and death more bearable.’

Ian Comer of Comer Crawley is a specialist in dealing with asbestos-related legal claims, and he welcomes the court’s decision.

‘It’s a very commonsense judgment,’ he says. ‘The law has been in flux for some time as the full implications of asbestos-related cancers are brought home to the insurers. They realize they stand to have to pay out millions of pounds in compensation so they are determined to fight this every inch of the way.

‘But this is a tremendous victory for mesothelioma sufferers and their families. It gives welcome clarity and enormous comfort to all those affected.

‘They have had to battle through many court actions over the years to get to this point, in the face of constant attempts by the insurers to change the law in their favour.’

Three of the test cases involved employees who had suffered and died from mesothelioma as a result of inhaling asbestos fibres in the course of their work. The other three involved employers and local authorities who have paid compensation to former employers and are seeking to recover that outlay from their insurers.

The judge's ruling yesterday means that employees can claim against the employers' historic insurers even though there is no exact proof of when life-threatening tumours develop. Thousands of families of workers who have already died and others who may contract the disease in the future were awaiting the outcome of the case.

Asbestos was widely used in shipyards, building construction and other industries from the early 1950s until the 1980s, before being finally banned in 1999.

Mesothelioma is a cancer that affects the external lining of the lungs or, less commonly the lining of the abdomen or heart, and usually results from inhaling asbestos fibres.

> back to news archive