Asbestos claims against Builders Accident Insurance
Asbestos disease sufferers have today learnt of developments in claims against Builders Accident Insurance.
Posted on 07 April 2007
Asbestos disease sufferers have today learnt of developments in claims against Builders Accident Insurance who last year ceased paying compensation to mesothelioma and lung cancer victims based on a possible re-interpretation of the wording of their insurance policies.
Mesothelioma is a particular type of lung cancer caused solely by asbestos exposure. It is untreatable, always fatal and the biggest cause of work related death in the UK. Lung cancer, which is typically caused by smoking, can also be caused solely by asbestos exposure. The two types of cancer are similar to other asbestos diseases in that they do not develop until several years after the exposure ("the latency period"), but they are distinct in that they are considered to "commence" with genetic mutation to the lung tissue, which begins to occur approximately 10 years before symptoms (i.e. several years after exposure).
In 2006, in the case of Bolton MBC v. MMI Insurance, the Court of Appeal interpreted the coverage of a public liability insurance policy as being triggered by the commencement of the victim's disease (in this case mesothelioma in around 1980) and not the period of exposure to asbestos 20 years beforehand.
Gordon Green was negligently exposed to asbestos by Bolton MBC in the 1960's and tragically died from mesothelioma in 1991. Bolton MBC paid part of his damages and then tried to recover that payment from their insurers, MMI, who had provided cover from 1979 to 1991, on the basis that MMI provided cover when Mr Green's cancer first developed. MMI disputed this, arguing that the liable party was the one who was responsible when Mr Green was exposed in the 60's (Bolton MBC).
The Court of Appeal considered that the insurance cover for the claim was the later insurer who provided cover when the victim developed mesothelioma, not Bolton MBC who exposed Mr Green to asbestos.
However, the Bolton case was distinct for two reasons:
- it concerned a local authority who existed both when the employee was exposed to asbestos and later when he developed mesothelioma. Very often employers who exposed people to asbestos have now ceased to exist and therefore the only existing insurance policy is from the date of exposure.
- the Bolton case concerned public liability insurance policy. The vast majority of asbestos disease claims concern employer's liability policies. The 2 types of policy are often worded very differently.
Builders Accident Insurance
Builders Accident Insurance provided numerous insurance policies to industries where asbestos exposure was common throughout the 1960's, 1970's and 1980's. Price Waterhouse Coopers who act for BAI, state that they have sought the guidance of the High Court as to the interpretation of these policies and whether, like Bolton MBC, they can argue the insurance written in the 60's and 70's is not responsible for paying asbestos victims.
The matter is expected to proceed to a trial with a number of "test" cases later in 2007. In the meantime, mesothelioma and lung cancer sufferers with claims against BAI are left with the uncertainty of knowing whether or not they will obtain compensation for them and their families.
The Bolton decision has already received widespread criticism due to the risk this raises for asbestos victims where the company they worked for decades ago has now gone out of business. Daniel Easton, a solicitor specialising in asbestos disease claims at Leigh Day & Co said:
"this is a blatant attempt by BAI's representatives to avoid paying compensation to those who need it most. Even if this matter proceeds to trial this year, many claimants will die in the interim without knowing whether or not they will obtain compensation for them and their families. It is simple common sense that the company responsible for exposing someone to asbestos, or their insurer, should also be responsible for paying their compensation".
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