An appeal by the Unite union to the UK’s highest court comes after insurance companies were partly successful in a test case about whether insurers are liable to pay claims for the fatal asbestos illness, mesothelioma.
The most recent Health & Safety Executive figures revealed that there were 2,321 mesothelioma deaths in 2009.
The court of appeal ruled in October 2010 that the high court was wrong when it decided in 2008 that all insurers who provided cover to the employer at the time of the asbestos exposure should pay.
Unite general secretary Len McCluskey said: “The court of appeal decision has left a black hole in the protection that employers’ liability insurance was intended to provide. Insurance companies sold policies to cover risk. When the risk became a reality some resorted to picking apart the words in their own policies.
“It is illogical that some victims of asbestos will receive compensation and others won’t, depending on words such as ‘injury sustained’ or ‘disease contracted’ used in insurance contracts written decades ago. Try explaining that to someone diagnosed with a fatal disease caused by the negligence of their employers.”
The court of appeal decided last year that in some cases the employers’ liability insurance is ‘triggered’ not by the exposure to asbestos, but by the development of the disease which is always decades later, by which time there is no insurance in place to respond to the claim.
The ruling has meant that in every case the exact words used in the insurance contract would have to be studied and some victims have been left without compensation.
Unite’s appeal is on behalf of the family of Charles O’Farrell, who died in 2003 having been exposed to asbestos while working as a steel erector from 1964 to 1967 for Humphreys & Glasgow Ltd, insured at the time by Excess Insurance Company Ltd. The employer ceased trading in 1992.
Excess Insurance argued that it was not liable to pay out because, according to the wording of its policy, employees had to ‘sustain injury’ at the time they were working for the employer and within the 12 month period of the insurance policy.
The court of appeal decided that Charles O’Farrell did not ‘sustain injury’ until he developed mesothelioma many years later, after his employment had ended and long after the insurance policies in place at the times of his exposure to asbestos had expired.
The union’s lawyers say that the court of appeal was wrong to detach the meaning of “injury sustained” from when the disease was caused.
Charles O’Farrell's daughter Maureen Edwards said: “My dad died a painful death from mesothelioma. Watching him suffer was agonising for all of his family. His employer’s insurers forced this fight to avoid paying out compensation he had already been awarded. The insurers’ attitude is difficult for us to understand.
“My dad would have been disgusted by the lengths Excess Insurance has gone to get out of paying. For his sake and the thousands of others like him we hope the supreme court will accept our appeal.”