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    Asbestos Appeal Court ruling : what it means

     

    ABI: Insurers committed to asbestos compensation

     

    The Association of British Insurers has claimed that insurance companies are still committed to compensating asbestos victims despite today’s critical Court of Appeal ruling.

     

    The Court of Appeal overturned a 2008 High Court decision that found the insurers who should pay claims for the fatal asbestos illness, mesothelioma are those that provided cover to the employer at the time of the asbestos exposure.

     

    The outcome 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.

     

    Nick Starling, ABI’s director of General Insurance and Health, said: “Active insurers remain committed to paying compensation to all asbestos-related disease claimants as quickly as possible. This is not about insurers versus victims, but about ensuring that claimants and their families receive compensation from the employers’ liability insurer on risk when exposure to asbestos occurred.”

     

    “This is the basis on which insurers paid out over £100m to mesothelioma claimants alone in 2009. This action was brought by a small group of companies who no longer write new business against the views of the majority of the UK insurance industry.”

     

    He added: “It is regrettable that the judgment in this case could lead to a small number of claimants not getting the compensation they could reasonably expect. The judgment is detailed and complex and our members are studying it closely. We cannot speculate on the outcome of any further appeal.”

     

    Association of British Insurers press release 8.10.10

     

    Friday 8th October 2010

    Asbestos compensation ruling : UCATT

    Construction union UCATT has pledged to campaign vigorously in order to overturn a decision announced in the Court of Appeal today (October 8th), which will mean that thousands of dying asbestos victims will be barred from claiming compensation.

    The Court of Appeal has ruled in favour of a case brought by the insurance industry. Under the “trigger issue” case, the insurance industry successfully argued that the insurer(s) at the time a worker was exposed to asbestos, were no longer liable to compensate the victim. Instead the trigger for compensation should be when symptoms developed and the insurer at that time should be liable.

    In most serious asbestos related illnesses, such as the incurable lung cancer mesothelioma, there is around a 30-year latency period between exposure and the disease developing.

    Many victims develop asbestos diseases after retiring from work. If the Appeal Court judgement is allowed to stand, they and their families will not be able to claim any compensation, saving the insurance industry billions in compensation.

    Alan Ritchie, General Secretary of UCATT, said: “This decision is disgraceful and perverse. This is not justice. Victims who were needlessly exposed to asbestos, will be prevented from claiming compensation, leaving the victim and their family destitute.”

    The Trigger case issue was originally brought by the insurance industry in June 2008 and the courts originally found against the insurance industry. The insurers then appealed and took the case to the Court of Appeal. It is expected that there will now be a further appeal and the case will progress to the Supreme Court.

    Mr Ritchie, added: “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.”

    It is feared that if the decision is not overturned then the insurance industry will use the judgement to dismantle most forms of occupational injury and illness compensation.

    UCATT will be campaigning with sympathetic MPs, unions and asbestos support groups in order to have the trigger issue decision reversed.

    Natascha Engel MP for North East Derbyshire, said: “The minimum that asbestos victims and their families deserve is to receive compensation. It is simply wrong that the courts could consider preventing this basic form of justice, it is clear to me that there would be no disease without the prior exposure to asbestos and in almost every case this is a result of negligent employers and insurers ”

    UCATT originally raised the trigger case issue at Labour Party conference in 2008 and warned of the consequences if the insurers case was upheld.

    UCATT represents members employed in the construction industry throughout the United Kingdom and the Republic of Ireland

    Notes to Editors: Construction workers are now at the greatest risk of developing asbestos related diseases such as mesothelioma.

    Over 2,000 people a year die from mesothelioma and death rates in the UK are not expected to peak until at least 2016.

    UCATT press release 8.10.10

     

     

    Asbestos victims face compensation uncertainty

    8 October 2010

    A court of appeal decision today leaves dying people and their families unsure whether they will be entitled to compensation after insurance companies were partly successful in a test case about who picks up the bill in claims for the fatal asbestos illness, mesothelioma.

    The court of appeal ruled that the high court was wrong when it decided, in 2008, that the insurers who should pay are those who provided cover to the employer at the time of the asbestos exposure.

    The court of appeal has decided that in some cases the employers’ liability insurance is “triggered” not by the exposure to asbestos but by the development of the disease which is always decades later, by which time there is no insurance in place to respond to the claim. The outcome 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.

    The original nine-week court battle in the summer of 2008 examined a number of cases where the insurers refused to pay out. They included Charles O’Farrell’s case. Charles was a retired member of Unite the union who died in 2003 having been exposed to asbestos while working as a steel erector from 1964 to 1967 for Humphreys & Glasgow Limited who were insured at the time by Excess Insurance Company Limited. The employer ceased trading in 1992.

    Excess Insurance argued that they were not liable to pay out because, according to the wording of their policy, employees had to “sustain injury” at the time they were working for the employer. The court of appeal decided that Charles did not “sustain injury” until he developed mesothelioma many years later.

    Unite joint general secretary, Derek Simpson, said: “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.”

    “At a time when the government is seeking to save money this decision will prevent the department for work and pensions being able to recoup state funded benefits from insurers, which will inevitably lead to more pressure on public funds.”

    Charles’ daughter, Maureen Edwards, said: “My dad died a painful death from mesothelioma.  Watching him suffer was agonising for all of his family. His employer’s insurers forced this fight to avoid paying out compensation he had already been awarded. The insurers’ attitude is difficult for us to understand.

    “My dad would have been disgusted by the lengths the insurers have gone to, to get out of paying.”

    Notes to editors:

    ·         Mesothelioma is cancer of the lining of the lung caused by exposure to asbestos. There is no cure and around 2,000 people a year are currently diagnosed with the disease in the UK.

     

    ·         Unite is Britain’s biggest union with two million members in every type of workplace Unite is the union for the 21st century. Unite was formed by a merger between two of Britain’s’ leading unions, the T&G and Amicus. It was created to meet the great challenges facing working people in the 21st century and is a democratic and campaigning union which fights back for employees in the workplace, is taking trade unionism out to the millions of unorganised workers, is a union that stands up for equality for all and advances its members interests politically.

     

    UNITE Union press release 8.10.10

     

     

    TUC concern at Court of Appeal asbestos ruling

    8th October 2010

     

    The TUC expressed grave concern at the continued uncertainty now faced by hundreds of people dying from asbestos exposure following a decision in the Court of Appeal today (Friday) over compensation payments.

     

    Mesothelioma sufferers will now have to wait while the case over their compensation entitlement is referred to the Supreme Court.

     

    Back in 2008 the High Court ruled that employers’ insurers at the time of exposure to asbestos were liable to pay out on claims for mesothelioma. The insurance companies’ appeal was decided on at the Court of Appeal today.

     

    The TUC is concerned that any decision which allows insurers not to pay compensation to people who were exposed, even where there was an insurance policy in place, not only undermines the whole principle of compulsory employers’ liability insurance, but also denies thousands of people, and their dependants, justice.

     

    Commenting on the ruling TUC General Secretary Brendan Barber said: ‘Over the years insurance companies have done all they can to avoid paying asbestos victims the compensation they are entitled to. They were more than willing to take the premiums when the victims were working, but only too happy to rush to court when claims are made.

     

    ‘This is the real compensation culture we face in this country. A culture where people can be killed as a result of their employer’s negligence and then be denied the compensation they are entitled to.’

     

    TUC Press release 8.10.10