Justice for Sufferers of Asbestos Related Diseases
BY Rory McMullan,Clear Law Solicitors
At the end of March a landmark case heard before the Supreme Court ensured that mesothelioma sufferers and victims of other asbestos related illnesses could claim damages from the insurers of the employers that exposed them to asbestos. For sufferers of mesothelioma and asbestosis claiming damages has been fraught with difficulty in the past. The usual rule in negligence cases, that the Claimant must establish on the balance of probabilities that the Defendant’s negligence caused his or her injury or disease, traditionally caused problems for the sufferers of these diseases as it is difficult to pinpoint the exact cause of the illness. Especially as in most cases many years have passed since the asbestos exposure by the time the illness is diagnosed. However, in 2006 the House of Lords held that an exception of the rule be made for mesothelioma sufferers in that they only have to prove that the exposure to asbestos contributed the risk that they would suffer mesothelioma to hold their employer liable.
However, in practice many suffers still struggled to obtain compensation for these illnesses. This is because many of the companies that are liable for asbestos exposure have since ceased trading. Whilst all companies are obliged to have in place insurance to protect against such liabilities the insurers were routinely refusing to pay out Claimants as they interpreted their liability as only extending to conditions that became apparent during the insurance policy term. In practice, if this was the correct interpretation it would result in many Claimants being unable to claim compensation for their condition despite their being a negligent exposure to asbestos.
The Claimant’s in the recent cases decided by the Supreme Court had been fighting for the better part of a decade for justice on this issue. Ruth Durham, the daughter of one of the Claimants, the late Leslie Screach, had commenced the claim on her father’s behalf against the insurers of the company that exposed him to asbestos in the 1960s. Mr Screach worked as a painter/sprayer in London and was diagnosed with mesothelioma in April 2003 and died of the disease in November 2003. Mr Screach knew that he was unlikely to live to see his case won but believed that it would be a worthwhile endeavour if it would assist people in future. Mr Screach’s employer’s insurers failed to pay compensation and proceedings were issued in 2006.
Mr Screach and the other Claimants were ultimately successful in their claims. The insurers appealed the issue with the Supreme Court who decided that when it comes to employer’s liability policies the negligent exposure of an employee to asbestos during the policy period had a sufficient causal link with the subsequently arising mesothelioma to trigger the insurer’s obligation to indemnify the employer.
I am extremely pleased at this decision as otherwise many sufferers of asbestos related diseases and their families would be effectively barred from claiming compensation for these very serious diseases. Miss Durham has written a concise and moving account of her experience in the Guardian which can be found here: