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Asbestos / Mesothelioma Supreme Court Judgement - UK Insurers ordered to pay up

#1 User is offline   hukildaspida 

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Posted 01 April 2012 - 02:38 PM

Some of this case shows how similar the way operates.

Commenting on the Supreme Court's decision, Unite general secretary Len McCluskey said: "It is a disgrace that insurance companies went to such lengths to shirk their responsibilities."

Helen Ashton from Irwin Mitchell
said: "This judgment means that the thousands of people who are yet to be given the devastating news that they have the deadly illness will at least know that their families can get access to justice and receive the financial security they need.

"But the sad fact is that many victims of mesothelioma who have been awaiting the outcome of this appeal may not have lived long enough to know if their families will now receive the compensation they deserve."


The Supreme Court of the United Kingdom
Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901

28 March 2012
Employers’ Liability Insurance “Trigger” Litigation: BAI (Run Off) Limited (In Scheme of
Arrangement) and others v Durham and others [2012] UKSC 14
On appeal from [2010] EWCA Civ 1096








April 01, 2012

Mesothelioma kills woman 40 years after hugging her asbestos-exposed father


#2 User is offline   hukildaspida 

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Posted 03 April 2012 - 10:56 PM

What an incredibly strong person to take on these Insurance companies & sock it to them.

The Insurance industry wordwide needs a big shake up.

It's overdue they comprehended the fact it is the public's money they are living off which was intended for the public, not for their own highflying fancy lifestyles.

My dad, and why I fought for justice for asbestos victims

Asbestos-related cancer killed my dad in six months. It's taken nine years to change how insurance is paid to victims like him

Ruth Durham, Tuesday 3 April 2012 11.00 BST
Article history

High court asbestos ruling
The supreme court has ruled insurers' liability was triggered when people were exposed to asbestos. Photograph: Graham Turner for the Guardian

My father, Leslie Screach, was a painter/sprayer in London during the 1960s. He worked mainly on industrial premises where he was supplied with a basic mask, but no other protective clothing, for when painting boiler houses in office blocks or brushing down asbestos panels on footbridges over railway lines. This was how he breathed in the asbestos dust that led to the cancer that killed him.

We first realised something was wrong when he struggled to put his socks on. Bending over became difficult, because of the disease in his lungs. Dad was diagnosed in April 2003 with mesothelioma, and we were given a booklet that explained about the disease, telling us it was terminal. From that day on we knew we were on borrowed time. After that the changes took place very quickly – by July he was in a wheelchair and found going out difficult, if not impossible, as he had become so weak. He even became too weak to talk on the phone. Day by day I could see him deteriorating and I had to ring the district nurses to increase his morphine dose.

My mother did not cope well with his illness – we later found out she had Alzheimer's disease. This meant the responsibility fell on my shoulders, as an only child, and this took its toll. I had to take sick leave from my job as an administrator to care for Dad in the short time we had left. He was 73 and I was 43. I felt cheated; he should have lived for at least another 10 years in my eyes. We were so close; he was my best friend as well as my dad. We used to ice skate and practice sign language together; all this has been taken away from me. I also found that, as a family, we were isolated from other sufferers – whether this was because of the area we lived in or because I was so focused on my dad's care I didn't have the time to contact any support groups in other areas. He died in November 2003, just six months after he was first diagnosed.

After his diagnosis, Dad and I had discussed taking legal action against the company he had been working for when he was in contact with asbestos. He knew he would not live to see his case won, but he believed that if going to court would help other people in the future, then that was what we should do. So, in August 2006 when the insurance company for Dad's employer refused to pay, I went to court to ensure insurance liability would be triggered at the time employees were exposed to asbestos dust, not when mesothelioma emerges – which can be many years later after the employer has gone out of business and there is no insurance in place.

I persevered for nine years, even when I felt like giving up, because I was determined to see the case to its conclusion for my dad's sake. I could not have done this without the relentlessly hard work done by my solicitor, Helen Ashton, and Irwin Mitchell solicitors. Last week we finally won and I am overjoyed that justice has prevailed and the right decision has been handed down. Now, hopefully, nobody will ever have to endure such a complicated and technical legal process again. This case was never about money, it was to make sure that anyone in the future who suffers through this terrible disease will be acknowledged by these insurers.

Nothing can ever bring Dad back, but the thought that our case can improve someone else's life makes his death more bearable. I still miss him terribly every day, but I can now feel some closure. When I talk about him, instead of thinking of the illness and his subsequent death, I can remember the good times we had together. The judgment will provide comfort and security for mesothelioma victims and their families both past and future, because it allows them to see justice being done and will provide them with the financial security they need and deserve.

#3 User is offline   hukildaspida 

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Posted 03 April 2012 - 11:00 PM

Asbestos court ruling leaves insurers facing bill of up to £5bn

Supreme court rules liability was triggered when people were exposed to asbestos, not when they developed mesothelioma

Owen Bowcott, legal affairs correspondent, Wednesday 28 March 2012 16.47 BST
Article history

Supreme court
The supreme court ruling ends a legal battle between asbestos victims' families and insurers lasting more than five years. Photograph: Graham Turner for the Guardian

Insurers may have to pay out as much as £5bn to relatives of those who have died from asbestos-related cancers following a supreme court judgment that will benefit thousands of families.

At the end of a legal battle that has lasted more than five years, justices at the country's highest court ruled by a four to one majority that insurance companies' liability had been triggered when individuals were exposed to asbestos dust – not when symptoms of the connected condition, mesothelioma, emerged decades later. Some claims date back to the late 1940s. The supreme court ruled that the disease could be said to have been "sustained" or "contracted" – the wording varied between company insurance policies – by an employee in the period when it was caused or initiated, even if it only developed or manifested itself later.

Lord Clarke said: "The negligent exposure of an employee to asbestos during the [insurance] policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer's obligation."

Britain and Ireland's largest trade union, Unite, welcomed the "landmark" ruling, which it said would affect "many of the 2,500 people who are diagnosed with mesothelioma each year". Its challenge was on behalf of the family of Charles O'Farrell, a retired member who died of mesothelioma in 2003.

Lawyers and the insurance industry have estimated the liability at between £600m and £5bn. Municipal Mutual Insurance (MMI), one of the insurance firms that appealed against the compensation ordered by lower courts, said it had already been paying out to local authority employers for mesothelioma claims, despite not being obliged to do so until the outcome of the case was known.

Commenting on the supreme court's decision, the Unite general secretary, Len McCluskey, said: "This is a landmark ruling which will affect thousands of victims of asbestos.

"It is a disgrace that insurance companies went to such lengths to shirk their responsibilities. For callous insurers this means the responsibility holiday is over. Unite fought this case to the highest court to get justice for Charles, his family and all victims of asbestos.

O'Farrell's daughter, Maureen Edwards, said: "All I ever prayed for was the right decision. This is the right decision. My dad worked all his life and was hoping to enjoy retirement before mesothelioma took him away.

"There was never any question about who was to blame – all this long battle was about was insurers wanting to get out of paying. It is very difficult for us to understand the insurance industry's attitude to dying people, an attitude that the government [legal reforms are] going to make worse."

Helen Ashton, from the law firm Irwin Mitchell, who represented the lead claimant in the case, said the ruling provided "clarity, consistency and comfort for mesothelioma victims and their families".

The ruling was welcomed as a "great relief" by Ruth Durham, who had continued the legal battle in memory of her father Leslie Screach. He died in 2003 after being exposed to asbestos fibres between 1963 and 1968 while working as a paint sprayer in west London.

His daughter said: "I was determined to see this through with a positive outcome for all those who, like my dad, suffered so terribly because of someone else's negligence. I miss him every day and no sum of money will ever bring him back or make up for what he went through."

Nick Starling, the Association of British Insurers (ABI)
director of general insurance and health, said: "[This] ruling by the supreme court has confirmed what most in the industry have always understood – that the insurer on cover when the claimant was exposed to asbestos should pay the claim, rather than the insurer on cover when the mesothelioma develops.

"This case has been pursued by a small group of 'runoff' insurers acting independently and at odds with the views of the majority of the UK insurance industry. We are pleased that the supreme court has overruled the court of appeal's judgment on this point as it ensures that claimants should get the compensation they reasonably expect."

MMI said it had participated in the joint action to determine the extent of the company's insurance liabilities under policies it wrote in the period up to September 1992 when it ceased writing new insurance business.

#4 User is offline   hukildaspida 

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Posted 13 April 2012 - 03:37 PM

We are inserting this New Zealand tribunal decision in this thread because, in our opinion, NZ needs to wake up to the fact that the truth and seriousness surrounding Asbestos / Mesothelioma is often not realised until it is to late.

GF v UH LCRO 178/ 2011
- Standards Committee did not uphold a complaint that lawyer had failed to take all steps to challenge an ACC decision. Standards Committee decision confirmed on review.
Full Decision (PDF, 63Kb)


#5 User is offline   hukildaspida 

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Posted 04 May 2012 - 01:24 PM


Leon Taylor, insurance and reinsurance partner, DLA Piper

Keeping employees covered

30 April 2012

The Supreme Court has made sure mesothelioma claims will be protected by employers’ insurance

On 28 March the Supreme Court gave its much-anticipated judgment in the employer’s liability (EL) policy ‘trigger’ litigation. In a majority decision the court reintroduced certainty in how certain types of EL insurance policies should respond to claims for mesothelioma, an invariably fatal cancer associated heavily with occupational exposure to asbestos.

The court’s decision in part overturns the controversial 2010 Appeal Court ruling and reinstates the historic practice that all EL policies ­respond to the culpable exposure of an employee to asbestos by their employer (ie the event that ‘caused’ the resulting disease) during the ­period of insurance. This was despite the ­express wording of the policies that all stated that they covered the ­employer for diseases ‘sustained’ or ‘contracted’ during the period of ­insurance. The insurers argued that these words pointed towards the date of development (not causation) of the disease, which occurs many years after exposure to asbestos.

The effect of the decision for disease sufferers, their families and their employers, is to minimise the possibility that there will be no insurance cover capable of responding to their claims because the claims will be allocated to the insurance policy in place when the ­employer was ­actively – and culpably – exposing their employee to ­asbestos. It has been estimated that hundreds of ­millions of pounds worth of insurance and reinsurance liabilities turn on the outcome of the case.

There are a number of lessons commercial litigators can draw, both as a matter of principle and practice. The result was clearly another example of the court placing a ‘purposive’ approach to contractual interpretation above the strict natural meaning of the words used. It had been ­observed during the appeal that ­several weeks of court time had been spent agonising over the meaning of just a few words.

However, the Supreme Court ­disapproved the over-concentration on the literal meaning of individual words in the contract in favour of a broader, contextual approach drawing on the other terms of the contract and the perceived commercial ­purpose of the transaction. In applying the increasingly influential Supreme Court decision in the 2011 Rainy Sky case, the court said that an outcome which left a small but “not insignificant” number of employers without EL cover for mesothelioma claims could not be the interpretation most consistent with business common sense.

Importantly, the court firmly ­rejected an attempt by some of the parties to rely on witness evidence from large numbers of insurance market practitioners about their ­perceptions and understanding as to how the policies worked. Just as the parties to a contract cannot be asked what they meant by their contract, it was also inadmissible to ask other persons ­operating in the market to give general evidence as to what they believed the parties intended.

The result will hopefully check the costly trend in commercial contract cases of presenting huge amounts of largely irrelevant material to evidence issues perceived to relate to the factual background to the contracts.

#6 User is offline   hukildaspida 

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Posted 03 June 2014 - 03:55 PM

Government must do more about Asbestos problem

Tuesday, 27 May 2014, 2:33 pm

Press Release: New Zealand Council of Trade Unions

Asbestos: biggest workplace killer – Government must do more now

The CTU is deeply concerned about the exposure to deadly asbestos Christchurch rebuild workers are experiencing. Fletchers, the major contractor responsible for a significant part of the rebuild project, will be in court on Friday facing possible charges for not complying with the law and keeping workers safe.

“Asbestos causes cancer. No exposure is safe. We have known this fact since at least 1986 when the World Health Organisation declared just that. Demolition workers, tradespeople, carpenters and householders may have been needlessly exposed to asbestos fibres in Christchurch. The Government should have been proactive in its approach to the presence of this known workplace carcinogen. The Government has a moral obligation to take urgent action. This should include monitoring the people who have been exposed, and compensating them if needed,” said CTU Policy Director, Bill Rosenberg.

“New Zealand is out of step with many other countries around the world as we fail to have a plan in place to eliminate asbestos. Banning all importation of asbestos products is a critical step. In Australia and the U.K., asbestos products are strictly banned at the border. Urgency should be given to upgrading the asbestos regulations rather than waiting until April 2015. There should be notification of work with asbestos, employers should be required to keep records of working with asbestos, and buildings known to contain asbestos should be registered,” Rosenberg said. The CTU listed twelve action points on asbestos.

“The Government has a goal of reducing workplace accidents by 25 percent by 2020. It must also have a goal around asbestos. The European Parliament has agreed to 'eradicate' asbestos by 2028.” Rosenberg said. “In New Zealand we should have a national plan to eliminate asbestos from buildings by 2030. The aim should be to completely eradicate asbestos from all workplaces,” said Rosenberg.

“MBIE estimates that 170 deaths occur a year from asbestos-related diseases, and that this will rise to over 300 as the results of the ‘asbestos boom’ of the 1970s make themselves felt. Even 170 is double the number of workplace deaths each year from injury – a number which is itself far too high. We can and must prevent more deaths in future decades,” said Rosenberg.

“The risks have been known to employers and government for thirty years. There is no excuse for putting off decisive action any longer.” Rosenberg said.

The NZCTU recommends:
1. An immediate priority to upgrading the asbestos health and safety regulations currently these are slated to come into force alongside the proposed Health and Safety at Work Act in mid-2015. This is too far away and the Minister of Labour should regulate as quickly as possible. Further amendments can be made following more detailed consultation.
2. As MBIE has proposed, the regulations should be based on the Australian approach which includes a presumption that asbestos is present in the built environment and therefore workplaces, and lowering the exposure limits which are out of line with international standards, and require more prescription in relation to removal work.
3. There should be mandatory licensing and training for those working with asbestos (both maintenance and demolition);
4. The distinction between friable and non-friable asbestos is unhelpful given the possible deterioration of previously non-friable asbestos. This should be removed.
5. A complete ban on the importation of asbestos-containing products should be implemented.
6. A National Plan to eliminate all asbestos containing material from the built environment by 2030.

Notification and registers
7. All work with asbestos notifiable under workplace health and safety legislation.
8. The Government should take urgent steps to implement a Health Surveillance scheme similar to that used in the United Kingdom for many years. This requires employers (or all persons conducting businesses or undertakings under the proposed law changes) to keep records of worker exposure to hazards such as asbestos for 40 years to allow tracking of long latency diseases such as those caused by asbestos exposure (see Part 26 of our submission on the Health and Safety Reform Bill).
9. All identified asbestos in Christchurch should be registered. If a building contains asbestos materials the priority should be to remove it. If asbestos is identified in a building it should be notified in LIM reports.
10. The National Asbestos Registers should be reinvigorated and improved including by making them compulsory.
11. Lung cancer should be registered and recorded in more detail.
12. There should be a system of notification by medical practitioners of all potential asbestos related conditions/exposures including, lung cancer and pleural plaques [asbestosis and mesothelioma are currently recorded].


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