Supreme Court rules on asbestos liability date

Insurers liable for year in which disease "contracted"

 

In a series of appeals concerning the "trigger date" for claims against employers' liability (EL) insurers in connection with mesothelioma the Supreme Court has unanimously disagreed with the Court of Appeal's differentiation between policies depending on whether the "causation wording" used was "contracted" or "sustained".

The word “contracted” used in conjunction with disease looks to the initiating or causative factor of the disease. While the word “sustained” may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been “sustained” by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later.

The Court also held (Lord Phillips disenting) that when construing the EL policies the concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule.


Employers’ Liability Insurance “Trigger” Litigation : BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others [2012] UKSC 14
On appeal from [2010] EWCA Civ 1096

 

Date Added: 28th March 2012