Recent Case Dealt With:
Durham v. BAI (Run-off) Ltd (Lead Case1): Fleming & Eddleston v. Independent Insurance Co. Ltd (Lead Case 2): Edwards v. Excess Insurance Co. Ltd (Lead Case 3) Thomas Bates & Son Ltd v. BAI (Run-off) Ltd (Lead Case 4): (1) Akzo Nobel Ltd (2) AMEC plc v. Excess Insurance Co. Ltd (Lead Case 5): Municipal Mutual Insurance Ltd v. Zurich Insurance Co & Ors (Lead Case 6) (2008)
The action arose as the Employers’ Liability Insurer at the time the employee was exposed by inhalation of asbestos fibres refused to deal with the claim following the Court of Appeal’s decision relating to Public Liability Policies in the case of Bolton MBC v. Municipal Mutual Limited (2006) EWCA Civ 50, (2006) 1 WLR 1492, the inhalation of asbestos fibres caused the medical condition known as mesothelioma some 40 years after inhalation of those fibres. Six tests cases were heard in the High Court of Justice, London before Mr. Justice Burton in the Summer of 2008 and Judgment was given on 21st November 2008, and it was HELD.
Although there was no injury or disease at the date of inhalation, they had been sustained or contracted, in the sense that they were caused, at that time. The medical evidence fundamentally supported the proposition that there was no injury at the date of, or indeed shortly after, inhalation: there was no structural damage to the lung tissue by virtue of the presence in the lungs either of the fibres or of the macrophages which were stimulated to deal with them. It was also quite plain that the employee did not have the disease mesothelioma at the date of inhalation, and in any case a disease without injury would be insufficient to found a claim. The proper construction of the insurance policy was that it covered the employer in respect of the injury, resulting from exposure during the policy, to a victim while he was an employee. However, if the trigger was when the victim developed a tumour, then the employer would not be covered if the victim developed it when he had ceased to be an employee. It made no sense if the policy had to be construed so that the employee lost his right to be indemnified if he developed the tumour when he was no longer an employee. There was no such problem if the trigger was when the victim inhaled the asbestos. "Sustained" and "contracted", when construed in their context and within the factual matrix, meant the same as "caused" or "be caused". Such a construction was consistent with the factual matrix, the commercial purpose of the employers’ liability insurance, and the public policy which plainly underlay the Employers’ Liability (Compulsory Insurance) Act 1969 and the Workmen’s Compensation Act 1897 and its successors. To construe a "sustained" wording in the causal sense was the only way consistent with that public policy and with the intent of the 1969 Act to ensure that the employee injured as a result of his tortious exposure was covered, irrespective of what might happen thereafter. Bolton was a decision construing a public liability policy incorporating, in the context of the relevant factual matrix, the work "occur", Bolton distinguished.
Judgement for the Claimants.
Present Position:
The Defendants in the aforementioned action have lodged Appeals, such Appeals are to be heard late Autumn 2009
Defendant Industrial Disease and Illness Update –
After a two and a half week hearing in October 2009 the Court of Appeal Judgement is now awaited.
No date has yet been given for the handing down of the Judgement, however the Court have indicated that it would be some time in 2010.
As to whether the losers will take the matter to the Supreme Court is a matter of some speculation… |
