New guidelines issued for mesothelioma claims
A Practice Direction which was issued by The Queen’s Bench Division of the High Court on 26 July 2007, outlines the procedure applying to mesothelioma claims which are affected by the “Trigger Issue” dispute over insurance cover. The “Trigger Issue” relates to mesothelioma claims (in particular) where the insurer at the time of employment (when the claimant was exposed to asbestos) attempts to avoid liability by saying that they pay out not when the exposure occurs during the period of insurance cover but when the injury arises during the period of insurance cover.
If this argument succeeds then the insurer that pays is the insurer that was on risk at the time of the cancerous mutation, which is taken to be 10 years before symptoms arose, rather than the insurer that was on risk at the time of employment, typically 20 to 50 years before symptoms began. The difficulty for the affected mesothelioma claimants is that their employers ceased trading long ago and that as a result there never was any insurance policy in place at the time the cancerous mutation began, so these claimants and their families are left with no compensation.
The Practice Direction gives details of the cases which are affected, of the action to be taken in relation to existing and new claims, and aims to identify specific cases as “lead cases” for the issues in dispute. Under this Practice Direction, existing and new actions will be transferred to the Queen's Bench Division of the High Court and will be assigned to Master Whitaker, who currently has responsibility for managing mesothelioma claims that are issued in the High Court in London.
This Practice Direction will allow the court to decide which claims should go forward as part of a group of “test cases” which can go to trial together to establish the meaning of typical Employers’ Liability and Public Liability insurance policies as they relate to the treatment of industrial disease claims, and in particular mesothelioma claims.
A decision on the selection of the lead cases is expected on 12 October 2007.
“Some insurers or underwriters are trying to generate a windfall for themselves at the expense of those suffering from mesothelioma and at the expense of their families. They are arguing that the policies that were sold as “Employer’s Liability” policies, that provided employers with protection against any claims that their employees might bring, were nothing of the kind and were effectively worthless. That argument is offensive on a number of different levels. What is worse for those mesothelioma sufferers who are affected is that this issue will take time to resolve, time which they simply do not have.
It is therefore good to see that the Courts have taken steps to have this issue resolved decisively sooner rather than later, though it seems likely that one side or the other will try to take this issue to the Court of Appeal, whatever happens in the High Court.”
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Fieldfisher is a leader in the field of mesothelioma claims. In 2006, our Asbestos Claims Department recovered over £10 million in compensation in over 80 cases for victims of asbestos-related diseases. Over the past 25 years we have recovered over £100 million compensation for asbestos victims.