Opinion

Supreme Court victory for asbestos victims

5 April 2012

A new ruling in the Supreme Court last week means that Employers Liability Cover must be valid against claims brought for mesothelioma caused by exposure to asbestos while at work. Rob Blackburn of specialist environmental support services group Silverdell explains what this means for employers.

Mesothelioma is a cancer for which asbestos is almost entirely to blame. This cancer has an incubation period around 40 years; upon diagnosis it then kills within 18 months.

Most of those that die from mesothelioma are exposed to asbestos during the course of their work and, therefore, have the right to seek compensation through the company’s Employer’s Liability Insurance. Or so they had thought.

In 2006, four insurance companies joined forces to argue that Employer’s Liability insurance cover was ‘triggered’ by the development of the disease, not the exposure that caused the disease – two events that can be separated by decades.   This was a pernicious action, the consequence of this has meant many sufferers have had no access to compensation since this case started in 2006 – employers no longer in existence and insurance companies refusing to pay.

All of this changed on 28th March 2012 when the Supreme Court ruled that as Employers Liability insurance is written to provide cover against liability for injury or disease sustained by employees in connection with their work then, necessarily, such insurance cover must be valid against claims brought for mesothelioma caused by exposure to asbestos while actually at work.

Judge Lord Clarke said “The negligent exposure of an employee to asbestos during the [insurance] policy period has sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation.”

Is this ruling likely to affect the modern employer?  Within the UK there are some 1.8 million people exposed to asbestos each year.  Work on asbestos falls into two main categories, Licensed and Non-Licensed.  Over 99% of those exposed to asbestos are outside the Licensed regime (which accounts for less than 9,000 workers).  Many of the 1.8 million are exposed unknowingly and accidentally through a lack of knowledge of where asbestos is, and, as a result of failures to implement adequate Asbestos Management Plans – a legal requirement since May 2004.

The HSE recently stated that they have little or no knowledge of work conducted within the Non-Licensed sector but, with the law changing on April 5th 2012, a further 730,000 employees will be brought under a regime of notification and medical surveillance – this should certainly help our understanding of the issues still faced in protecting workers from asbestos.

The process of protecting employees from asbestos has been an uphill task since the dangers were first officially recognised in the 1930’s. The delay of the onset of symptoms after exposure has not helped the regulator, the employer or insurer.  As knowledge has increased the death toll – now at over 4,700 per year – has risen dramatically.  The legacy of asbestos is very much with us today.

While this Supreme Court ruling relates to cases of historic exposure it is worth considering that the HSE estimated that, in 2002, there were 4.4million UK properties containing asbestos and, without the introduction of the Duty to Manage, 3,800 individuals would go on to contract a fatal asbestos related disease.

The questions that employers need to be asking themselves is; are we compliant? and; are we managing the asbestos under our control safely?”

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