Employers Liability Trigger Litigation

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1 Employers Liability Trigger Litigation Following my preliminary note of the 11 th October 2010 I have now had an opportunity to study the decision in detail. This litigation was to decide what event would trigger the liability for disease claims for Employers Liability policies going back over 40 years. The disease in question is mesothelioma although the reasoning will apply to all disease claims although it is of more significance for mesothelioma claims because of the length of time between inhalation of the fibre or fibres causing the injury and its manifestation which can be 40 or more years later. What is Mesothelioma Mesothelioma is a type of cancer that occurs in the mesothelium, or the thin membrane lining the body's internal organs. The most common site of mesothelioma is within the pleura, a thin membrane which surrounds the lungs and chest wall. Mesothelioma also occurs in the peritoneum, which surrounds the abdominal cavity, as well as within the pericardium, which envelops the heart. Mesothelioma is associated with asbestos exposure. Most individuals diagnosed with mesothelioma have worked with or within proximity of airborne asbestos particles or asbestos dust. Asbestos is a naturally occurring mineral that has been used as an insulation material dating back to the early Greco Roman eras. Industrial use of the mineral, however, is the culprit for the majority of exposures. While symptoms are similar, mesothelioma is not lung cancer and there is no known nexus between smoking and the development of mesothelioma (Lungcancer.com) It is the jagged edges of the asbestos fibres that get lodged in the lungs rather than being washed through as other dust that we breathe in is. Initially the body s immune system will resist the growth of malignant tumours but in a number of cases the defences will eventually be overcome and a tumour will form and will become self sufficient and have its own blood supply (angiogenesis). This may occur 30 or more years after inhalation. In the trial in 2008 considerable medical evidence was heard from five internationally recognised experts in the field including for the first time two biochemists. The conclusion was that the above stage would be reached about 5 years or so prior to death. It is estimated that 2 to 3% of people exposed to asbestos in a working environment will go on to suffer and die from mesothelioma.

2 The Original Decision In November 2008 Mr Justice Burton considered the various wordings that had been used for Employers Liability policies from 1948 to the 1980 s. Prior to 1948 compensation to injured employees was by and large made under Workers Compensation Acts (WCA) but following the abolition of the common employment defence where if you were injured by the acts of a fellow employee the employer was not liable and the change in the rules for contributory negligence where it was no longer a complete defence Employers Liability insurance was introduced. There was a tariff wording for this which was on a causation basis but then over the years a number of different wordings were developed. Some policies used the words injury or disease sustained during the period of insurance, other policies used injury or disease contracted during the period of insurance and others injury or disease caused during the period of insurance. There were other variations but essentially these were the 3 variations being considered. On the basis of the medical evidence he decided that there was neither injury or disease at the time of inhalation but that injury or disease was not present until 5 years before diagnosability. In considering the different wordings he was concerned with the factual matrix of Employers Liability insurance going back to the days of WCA. He also considered the Employers Liability Compulsory Insurance Act 1969 (ELCIA),looking to causation wording as the best, albeit not mandatory, means of promoting its policy of protecting employees by requiring compulsory EL insurance as confirmation that EL insurance should respond to injury or disease whenever it was suffered provided it had been caused to employees during and as a result of their employment. He was concerned with the problems that would arise with ex employees if he accepted the arguments on sustained and contracted as EL policies only cover employees and in the case of mesothelioma there would be few claimants who were employed by the same firm when the fibres were inhaled and 40 years later when the disease was diagnosed (or 5 years earlier). His judgement was that sustained and contracted in this context meant the same as caused or be caused and this he felt satisfied both the factual matrix and the commercial purpose of EL insurance. He went on to explain why he did not feel bound to follow the decision in Bolton 1. He stated that Bolton was a Public Liability case and the court did not consider any EL wordings and was concerned with the word occur. He did not dispute the decision save for the updating of the medical evidence but felt able to distinguish it from the present set of cases. For most of the insurance industry this was a popular and sensible outcome as it preserved the status quo in that the EL market had always meet EL claims on a causation basis regardless of the different wordings. The insurers in the action who had opposed this were either in run off or in some form of insolvency. 1 Bolton Metropolitan Borough Council V MMI [2006] 1 WLR 1492

3 The Appeal The appeal was heard over 2 weeks in November 2009 with the judgement being published in October The main judgement was given by Lord Justice Rix. He agreed with the Judge s findings as to the commercial purposes of EL policies. However he held that a sustained wording was to be interpreted as responding at the date when injury was suffered and had the same effect as an injury occurring wording in PL policies (as per Bolton). For contracted wordings he decided was capable of referring to the disease s causal origins and would respond at the date off inhalation. He went further and considered that contracted could also refer to the onset of disease and its progress so a contracted wording would be a multiple or even a continuous trigger. He also looked at the ELCIA which he decided required a causation wording so for policies that came into force after the Act where the policy stated it meet the requirements of the Act would have to pay on a causation basis although the employer could be liable to repay the insurer where the cover because of the Act went beyond the wording of the policy. As to when the injury was sustained or occurred he felt he was bound by Bolton and he would have to find bearing in mind the new medical evidence that it occurred 5 years prior to diagnosis. He went on to say if he had not been bound by Bolton then he would have decided injury occurred at inhalation. Lord Justice Burnton agreed with L J Rix as to the meaning of sustained and with some hesitation the meaning of contracted. He disagreed with L J Rix on the commercial purpose of EL insurance saying that it can only be divined from its policy wording and that its purpose is to provide the cover defined in the policy. He also disagreed that the 1969 Act required a causation wording. He agreed that Bolton was correct as to the date of injury. Lord Justice Smith agreed with the original verdict given by Mr Justice Burton and would have dismissed the appeals. The Result By a 2 to 1 majority the position is that for those policies on a sustained basis then they will only respond at the date of the tumour namely 5 years prior to diagnosis. As the policies only cover employees then the claimant would also have to be an employee both at the time of the inhalation and when the injury was sustained. Given the nature of mesothelioma and the time gap between inhalation and the date of the tumour this would be very unlikely. This was accepted by the Court of Appeal. The result could be different for other diseases such as asbestosis and industrial cancers where the incubation period could be shorter where the claimant could still be employed by the same firm when the injury manifests itself.

4 As far as contracted is concerned according to 2 of the Lord Justices this could be the trigger at the date of inhalation, the onset of the disease or even as it progresses. If an insured had a policy on a causation basis when the fibres were inhaled but then changed to a contracted basis subsequently then there could be cover under 2 policies. Consequences The problems with asbestos have been known to us now for over 50 years but still continues to exercise insurers and the courts. According to the report published by Asbestos Working Party of the Actuarial Profession in January 2010: The total undiscounted cost of UK asbestos related claims to the insurance market could be around 11bn for the period 2009 to Of this figure, 90% relates to mesothelioma and over 9bn relates to the period 2009 to 2040, which compares to the working party s 2004 estimate for the same period of 4.7bn The proportion of mesothelioma sufferers that have made a claim for compensation has increased from around one third in 2004 to nearly two thirds more recently. This change, which was not expected in 2004, but has become evident in recent years, explains most of the increase in total costs. The working party has taken into account the Health and Safety Executive s statisticians revised projections of the number of future deaths from mesothelioma in Great Britain, released in 2009, in conjunction with other projection models. The number of male deaths from mesothelioma is expected to peak in 2028 at around 3,400 so the problem will be around for a number of years to come. The decision casts doubts on the effectiveness of the 1969ELCIA. The act requires employers to insure against their liability for personal injury to their employees as follows: Section 1 (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain (3) For the purposes of this Act (a) approved policy means a policy of insurance not subject to any conditions or exceptions prohibited for these purposes by regulations The Act uses the word sustained but requires the employer to maintain insurance so although Burton J and LJ Rix agreed that a causation wording best achieved this both LJ Rix and LJ Brunton were of the opinion that a sustained wording would meet the requirements of the Act provided the insurance was maintained. This obviously produces problems where the employer subsequently ceases to trade and the insurance lapses before the injury is sustained. Also the claimant would have to be still employed by the company he was working for when the injury was caused and in Great Britain.

5 A sustained wording would arguably give retrospective cover as it would cover an employee of an employer who had negligently caused the injury some years previously but whose injury had now only been sustained. There would also be the possibility that insurers who had to meet a claim because of certifying that the policy complied with the Act might be able to seek a recovery from a solvent employer if the claim was outside the wording of the policy. This should be unlikely going forward as all insurers who are still writing EL business have continued to interpret the policy as being on a causation basis regardless of the actual wording. This could change if they subsequently went into run off or became insolvent or their reinsurers challenged why they were settling claims outside the wording of the policy. A number of employers who are not subject to compulsory EL insurance nether the less chose to insure such as local authorities. In those cases there is no reason why the policy cannot be on a sustained basis and there would be no legal requirement to maintain insurance. There will also be an issue with employees and employers subject to TUPE which first came into force in the early 1980 s. An employee transferred under TUPE will take with him his rights etc. and his new employer will be liable for any injury suffered or caused whilst in his previous employment. Following the decision in a case in if the employee was injured prior to the transfer then it would be the insurer of the employer at the time who would meet the claim even though the new employer was liable under the TUPE Regulations. If the old employer many of whom were employers exempt from the ELCIA had cover on a sustained basis then there insurers would not be liable under the wordings of the policy and the insurer of the new employer on a causation basis would also not be liable. In considering this case it is important to remember that the courts were being asked to interpret the terms of insurance policies. It does not affect who is liable for the injury to the employee. The employer who negligently exposed the claimant to asbestos remains the guilty party. If that employer is no longer in existence then without an insurer with the appropriate worded policy the claimant will not recover damages. Fortunately for claimants the liability for mesothelioma is on a joint and several basis so as was often the case where there was more than one employer involved it is only necessary to identify one employer with the correct insurance cover to be able to make a full recovery if the action is successful leaving that insurer/employer to seek recovery from other negligent parties. When the Appeal was being heard the case of Sienkiewicz 3 had not been decided. This concerns how much extra risk exposure to asbestos must be caused over and above the risk already suffered. Mrs. Costello lived in the Ellesmere Port area and as well as being exposed to asbestos whilst working she was also exposed to a high level of environmental exposure. It was the first time that Section 3 of the Compensation act 2006 had been considered whereby any person who exposes a person to asbestos and materially increases a risk of mesothelioma will liable in tort. 2 Bernadone and Pall Mall Services Group and Haringey Healthcare NHS Trust and Independent Insurance [CA] Sienkiewicz (Administratix of the Estate of Enid Costello Deceased) v Grief (UK) Ltd [2009] EWCA Civ 1159

6 The Court of Appeal decided that the tortious exposure had materially increased the risk even though it was probably less than the environmental exposure. This case is scheduled to go to the Supreme Court in the next few weeks. If the decision is upheld this could see an increase in cases where previously it was thought that the increased risk was too minimal to justify a claim. This could affect PL policies more than EL although both will be involved. Although two of the Appeal Court Judges felt bound by the decision in Bolton it is thought that the new medical evidence will be accepted in future cases and the 5 year rule will replace the 10 year plus or minus rule that applied under Bolton. L J Rix did say in his judgment that had he not felt constrained by Bolton he would have preferred to decide that injury occurred when the asbestos was first inhaled even though it had not caused any actionable injury. He felt this could be managed by saying with the benefit of hindsight that for those individuals who went on to develop mesothelioma then injury was sustained at the date of inhalation. He approved the notion of a new tort for cases of asbestos of the increase in risk of an injury so that the continued exposure to asbestos increased the risk of contracting mesothelioma but did not necessarily increase the severity of the disease. Conclusion Inevitably the decision will go to the Supreme Court for what should be a final decision. At the time of writing the Order has not yet been published so the Appeal cannot be formally lodged but the Zurich have stated they intend to appeal. With luck this should be heard In late autumn At the moment the score stands at 2 all with J Burton and LJ Smith in favour of the status quo and LJ Rix and LJ Brunton in favour of adopting a literal interpretation of the wording. However, LJ Rix would have come to a different conclusion if he had not felt constrained by precedent. The Supreme Court will not have this problem as the Bolton case was a Court of Appeal decision. The Supreme Court decision may well also affect the position under PL as well as EL policies. The Appeal does emphasis the need to look at the 1969 ELCIA and subsequent amendments and to clarify the cover necessary to provide protection for employees. The Act has other deficiencies especially in the areas of employees working outside Great Britain and employees coming to work in Great Britain for short periods. When the Act was passed in 1969 these were perhaps not as common as they are today and there is a need to look at the Act in the current business practice.

7 What Action should Brokers take? The following steps are probably sensible to take: 1. Ensure that ay current EL policy is on a causation basis whether it is subject to the 1969 ELCIA or not. 2. Identify any period where cover was on sustained wording. There is probably nothing that can be done now to plug any gap but the client should be advised of the potential problem. 3. Make sure the client has a complete history where possible of their EL insurance history for all companies in the group. It will be necessary now to have copies of these policy wordings as insurers may dispute the basis of cover. 4. Where the client has taken on employees under a TUPE arrangement make sure they have details of the EL insurance of the previous employer. Where it was not insured ther should be indemnities in place. 5. Carry out a similar exercise for PL policies.

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