On the 28thMarch 2012 the mesothelioma developments took a huge leap forwards when the Supreme Court published its Judgement in the so-called “Trigger Litigation” group of cases.
The case concerned the interpretation of the wording “sustained” and “contracted” in Employers Liability insurance policies, and specifically, the effect of such wording in relation to Mesothelioma cases.
Mesothelioma is a type of Lung Cancer which is inevitably fatal and is caused by Asbestos Exposure. The exposure to Asbestos can have taken place many years earlier and the disease can have a latency period of up to 40 years.
There are estimated to be between 2000-3000 new cases of Mesothelioma diagnosed each year. Recently the widow of a former employee at Hinkley Point Power station in Somerset recovered damages on behalf of her late husband who had contracted the disease whilst working at the plant from the early 1970’s.
Mesothelioma Developments – The Trigger Litigation
The Trigger Litigation was a batch of test cases brought by a group of Insurers in run-off (no longer accepting new business). They argued that the terms of their policies meant that the insurer on cover for the employer at the time when the individual was diagnosed with mesothelioma should be responsible for paying damages, rather than the insurer on cover at the time when the exposure actually occurred. They sought to rely on the argument that the words “sustained” and “contracted” should be interpreted as meaning when diagnosed rather than when exposed to Asbestos.
By a majority of 4-1 The Supreme Court have now clarified the law and confirmed that these wordings shall be interpreted to mean the insurer who was on cover at the time that the Claimant was exposed will be liable to pay rather than when a diagnosis of Mesothelioma is confirmed. Thus the “trigger” for a valid claim against the insurer is exposure rather than diagnosis.
The decision brings a welcome certainty to victims of Mesothelioma who are able to identify the source of their Asbestos exposure and can establish the identity of the insurers of those responsible for the exposure at that time.