Blake Lapthorn was very good and efficient. They kept me well informed.
Asbestos Spring / Summer Update
Fri 1st Jun 2012 Personal injury
There have been a number of changes and updates in relation to the law concerning asbestos claims this quarter. This update highlights and draws together the ones we view as most pertinent.
March - Victory for Claimants in mesothelioma trigger litigation against Insurers
The month of March saw the Supreme Court hand down its decision as to when insurers will be liable for payment of compensation in asbestos claims as reported by Crown Office Chambers who acted on behalf of the successful local authorities:
The case resulted from a decision by a number of UK insurers to decline that they were the correct insurer for payment for mesothelioma claims.Following a previous court decision they sought to argue that their employers liability polices should be read on a contracted basis (when the tumour developed) rather than a causation basis (when inhalation occured) and as a result they were not liable to pay. This was in circumstances where the claimants had established the companies that they insured had exposed them to asbestos and as a result they had sustained injury.
The Supreme Court found in favour of the claimants and ruled that for employers liability insurance the correct insurer for payment of damages is that on cover at the time of inhalation rather than when the tumour develops.In contrast it has decided for Public liability insurance polices which are traditionally written on an 'occurrence' basis that these will probably respond on the date that the tumour develops and not on inhalation.
This decision will be welcomed by Claimants who were faced with the prospect of having obtained judgment in their favour not receiving any monetary compensation.
April - Increase in payments for Mesothelioma sufferers
The spring also saw the implementation of the Draft Mesothelioma Lump Sum Payments 2012 regulations. These have the effect of increasing payments for those first diagnosed on or after the the 1 April 2012 or where the date of diagnosis for mesothelioma is unknown.These are payments under the Diffuse payment scheme, terms of eligibility are set out on the government website as being eligible if :
-- are unable to make a claim under the 1979 Pneumoconiosis Act;
-- have not received payment in respect of the disease from an employer, a civil claim or elsewhere;
-- are not entitled to compensation from a Ministry of Defence scheme.
The scheme covers people whose exposure to asbestos occurred in the United Kingdom and was not as a result of their work as an employee. For example:
-- they came into contact with asbestos from a relative - for example by washing their clothes;
-- they were exposed to asbestos in the environment - for example, they lived near a factory using asbestos;
-- their exposure to asbestos was while self-employed;
-- their exposure cannot be specified but it occurred in the United Kingdom.
An example of the increase is a person who was aged 37 or under, diagnosed with mesothelioma who recieved £52,772.00 under the 2008 regulations. This has now been increased to £81,536.00.
April - Court Of Appeal finds parent holding companies responsible for employees of their subsidiary companies
April was a busy month and also saw the Court of Appeal handing down Judgment on the 25 April which confirmed that in appropriate circumstances the law may impose on a parent company responsibility for the health and safety of its subsidiary's employees.
This case concerned a claim brought by Mr Chander for compensation for asbestosis developed as a result of exposure to asbestos with Cape Building Products at the Iver Lane site in Uxbridge during 1959 and 1962.
Initially his Solicitors attempted to bring a claim against his former employers but could not do so as they were no longer in business and their insurers could not be located. They therefore brought the case against Cape PLC who were the parent company of his previous employer.
At first instance the Court found Cape PLC at fault as the parent company and compensation was awarded. However Cape were not happy with the decision and appealed to the Court of Appeal. In previous cases parent companies have been able to avoid liabilities from work undertaken by their subsidiaries by using the 'corporate veil' which treats parents and subsidiaries as separate entities.
Evidence was adduced by Solicitors acting for Mr Chandler to show that Cape PLC were involved in and knew about the health and safety effects of workers being exposed to asbestos at Cape Building Products.On appeal, the Court upheld the Judgment at first instance and stated:“There was, in my judgment, a direct duty of care owed by Cape to the employees of Cape Products. There was an omission to advise on precautionary measures even though it was doing research and that research hadn’t established, nor could it establish, that the asbestosis and related diseases weren’t caused by asbestos dust.”
This is a ground braking case which will potentially provide assistance and another avenue of recourse for asbestos victims where companies to whom individuals were employed no longer exist or insurers can be traced but those of parent companies can. It will also have much wider implications for claims generally involving parent companies and subsidiaries.
For further information or advise on any of the above issues, please contact Ruth Johnson, a Solicitor in our Personal Injury team, on 023 8085 7309 or at firstname.lastname@example.org. Alternatively, please fill in our Contact form and we will call you back.
Would you like us to call you back?
Call us between 8am and 6pm Monday to Friday, or use the enquiry form outside office hours
Or call us on 0844 620 6600