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Law Bulletin - March 2006

Liability

Asbestos Cases

Which insurer pays for long tail disease claims?

The Court of Appeal has ruled that the right public liability insurer to pay in cases of asbestos related injury were the insurers in force at the time the disease first gave rise to symptoms in the claimant rather than the policy in force at the time of the symptomless exposure to asbestos.

It is of wider application to most of our long tail disease cases where there is a gap between exposure to the harmful substance and the symptoms that later develop as a result of the conditions. The Court of Appeal says very clearly that the public liability insurer in force for the defendant at the time the symptoms occur should pay rather than the insurer in force at the time of the negligent exposure.

However the insurance policy should be read carefully as this judgment in part turned on the wording of policy which covered “accidental injury” and the word injury was crucial in linking insurance cover with the time when symptoms developed.

Bolton Metropolitan Borough Council -v- (1 ) Municipal Mutual Insurance Limited (2) Commercial Union Assurance Co Ltd (2006) EWCA Civ 50.

High temperature chrysotile unlikely to cause injury

When chrysotile asbestos fibre is subjected to extreme heat, it is converted into a non-asbestiform substance, forsterite, which is incapable of causing asbestos-attributable conditions.

This evidence came from Dr Rudd in the course of a claim by someone who had worked for London Transport. His job had entailed replacing brake linings. Dr Rudd gave evidence that these linings contained chrysotile which, when subjected to heat such as that generated by braking, converts into forsterite which is not considered to be causative of any asbestos induced conditions. Dr Rudd placed the risk at less than five percent and very possibly less than one percent of the risk of causing the claimant’s later condition of mesothelioma.

Dr Rudd attributed his mesothelioma to other employment in a gas works when removing asbestos lagging from pipe work.

Alexander -v- National Grid Transco and Transport for London (2005)