The High Court in London have today given judgment in an important case involving insurance cover for claims arising from the contraction of Mesothelioma.  

The Employer's Liability policy "trigger" litigation concerned the way in which Mesothelioma claims are dealt with.  For many years the insurers of employers who were on risk at the time that an employee was exposed to asbestos dust paid claims brought many years later by the employees who developed Mesothelioma.  This practice came to an end when some insurers began to argue that because exposure to Asbestos dust was not the same as sustaining an injury caused by Asbestos then it should be the insurer on risk many years later when the injury developed who should pay the compensation.  They relied on a Court of Appeal decision (known as the Bolton Decision, Click Here for the Judgment) concerning a public liability case (and argued that the wording in their policies of employers liability cover was such that they had no obligation to pay compensation many years after the policy lapsed.

This stance has resulted in many people who have developed Mesothelioma dying before their claim was settled because in many cases the employer has ceased trading and therefore could not pay the claim itself and nor was there a insurance policy in place at the time the disease became known about.

The decision of Mr Justice Burton today (Click Here for Judgment) is an important one and puts right a great injustice.  However, permission to appeal has been given by the Court and it remains to be seen how long these victims of Mesothelioma have to wait for their rightful compensation.

On 9th July 2008, the Government announced an intention to consult on whether Pleural Plaques should be conpensatable and if so on what basis.  You can view the full consultation paper at the following link.  Consultation Paper on Pleural Plaques

The Government have expressed the view that it would be inappropriate to follow the example of the Scottish Executive and legislate to over turn the House of Lords decision in the case of Johnston and allow Pleural Plaques claims to be pursued through the courts.   Instead, their preferred option is a no fault compensation scheme.

Sintons LLP have responded to the consultation paper.  You can read the full text by clicking on the following link.   Sintons LLP response     Appendix 1 and 2.   Sintons LLP believe that the only fair and just way forward is to adopt the legislation which is before the Scottish Parliament and allow Pleural Plaques sufferers to obtain compensation through the courts.  

Before preparing our response to the consultation paper we canvassed the views of our clients who were overwhelmingly in favour of this option.   Commenting on the fact that Scottish former  employees of nationalised industries such as Ship building, Energy and Steel would be entitled to compensation whereas English and Welsh employees working in the same conditions for the same employer would not, one of our clients described this as "Postcode Justice".  We agree and call on the Government to ensure equailty and consistency of treatment for all workers who have been negligently exposed to asbestos dust. 

On the 23rd of June 2008 a Bill was published which is intended to allow sufferers of Asbestos related Pleural Plaques to pursue claims, overturning a decision of the House of Lords in October 2007.

The Bill is also intended to enable sufferers of other conditions which may cause no or minimal breathing problems (Pleural Thickening and Asbestosis) to bring claims.  Many insurers of employers who negligently exposed their workers to Asbestos have argued since the House of Lords stopped claims for Pleural Plaques that the decision should apply to all Asbestos conditions which, in the opinion of the insurers, were not "serious".   

At this stage, the Bill will only apply to Scottish sufferers or to those who had exposure whilst working for Scottish companies.  

The pressure on the Government to introduce similar legislation for England and Wales is growing daily.

You can find the full text of the Scottish Bill together with an explanatory note by clicking on the following links:

• Damages (Asbestos-Related Conditions) (Scotland) Bill
• Explanatory memorandum to damages (asbestos related conditions) (Scotland)