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Thompsons Solicitors for The Legal Line - Case History
6. Personal Injury – Asbestos – The Fight Goes On
Thompsons Solicitors established the right to personal injury compensation for asbestos related disease by bringing the first successful claim in 1972. Some recent cases involving asbestos-related disease show the continued relentless dispute about liability from negligent employers and their insurers:
Fairchild and Others v Glenhaven Funeral Services and Others (2002): This involved three related appeal cases, where each claimant had developed mesothelioma as a result of exposure to asbestos dust by two or more parties. The defendants and their insurers tried to avoid paying any compensation by arguing that although they had been negligent in allowing the victims to be exposed to asbestos, it could not be proved that it was their dust which caused the illness. The cases were eventually successful after being taken to the House of Lords.
Barker v Corus Ltd and related appeals (2006): Thompsons acted for one of three claimants in this case in which the defendants resorted to a different approach to the one that had been rejected by the House of Lords in the Fairchild appeal only four years earlier. This time instead of arguing that the victims should receive no compensation because they could not prove which defendant was to blame, the defendants argued that the compensation should be reduced to take into account any period of asbestos exposure where the employer has gone bust and had no insurance or where the claimant was self employed.
The Law Lords accepted the employers appeal resulting in the innocent victims and their families being deprived of the right to full compensation. A campaign backed by Trade Unions and asbestos victim support groups, in which Thompsons played a part, led to a change in the law when legislation was introduced in July 2006 to restore the right to full compensation for mesothelioma sufferers and their families.
Rothwell v Chemical & Insulation Co Ltd (2007): This group of test cases was brought by the insurance industry to challenge compensation payments for people who have been diagnosed with pleural plaques, a form of scarring of the lining of the lungs caused by asbestos exposure.
Although it was accepted that people who have pleural plaques face an increased risk of dying from asbestos related disease and are anxious about their future health, the insurers argued that pleural plaques are not a significant injury and should not be compensated. Thompsons represented claimants in the test cases which were successful in the High Court in 2005 but the decision was reversed by the Court of Appeal in January 2006.
In October 2007 the House of Lords ruled that compensation would no longer be payable to people suffering from pleural plaques. Despite campaigns to have this decision overturned, the Government decided not to.
Edwards –v- Excess Insurance Company Limited (2008): Thompsons Solicitors acted in the lead test case in the Employers Liability Policy 'trigger issue' Litigation to protect the rights of mesothelioma sufferers and their families. Insurers had refused to pay compensation in mesothelioma cases on the basis that, under the terms of the policies they sold to employers, they should not be liable unless the insurance cover was in place at the time the disease developed. Their argument was that the liability for the policies to respond to mesothelioma claims was 'triggered' by the development of the illness rather than by the asbestos exposure.
In many mesothelioma cases the employer has long since ceased operating by the time the disease develops decades after the initial exposure to asbestos. Historically it was universally accepted throughout the Employers Liability insurance market that the insurer on cover at the time of the asbestos exposure would pay the claim. If the insurers had been successful in their legal challenge, thousands of families affected by this fatal asbestos disease, now and in the future, could have been left without any entitlement to compensation.
The case was heard at the High Court during June and July 2008 and the ruling was made on 21 November 2008 that the insurers on cover at the time of the asbestos exposure were liable to pay compensation.
The insurers appealed to the Court of Appeal where their arguments were accepted. Thompsons then pursued a trade union backed appeal to the Supreme Court. On 28th March 2012 the Supreme Court rejected the insurers' arguments and ruled in favour of the Edwards family.
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