Mesothelioma Test Case Ruling

We regularly report on compensation awards made to victims of mesothelioma, an aggressive form of cancer that principally affects the external lining of the lungs and normally only affects people who have been exposed to harmful asbestos. The symptoms of the disease do not manifest themselves until many years after the inhalation of asbestos dust.

The Court of Appeal recently handed down its judgment in an important test case concerning claims for compensation by people who had developed mesothelioma as a result of exposure to asbestos at work. The Court’s decision on when employers’ liability insurance cover is triggered will not only have serious implications for victims of the disease but will also create uncertainty for everyone involved in such cases.

The nub of the decision is that where the insurance policy states that the liability is insured when the injury is ‘sustained’, the policy under which compensation may be claimed is the one in force when the disease starts to develop. However, where the policy insures the policy holder at the time the disease is ‘contracted’, the liability will be triggered when exposure to the carcinogenic agent occurs.

This complex ruling raises a raft of issues. For example, it is likely to lead to protracted arguments over the precise date of injury. Further complications will arise when the employer involved has changed its insurer and the wording of the successive policies is at variance.

This ruling has brought added difficulties to what was already a complex area of litigation. It is likely that the case will now go to the Supreme Court for a definitive ruling on the matter.