Employers’ liability insurers

Durham v Builders Accident Insurance (run off) Ltd and other cases [2008] EWHC QBD 2692 (The Employers’ Liability Trigger Group Litigation)

At what stage of the disease mesothelioma, after the original exposure to the toxic dust to the development of a tumour and its fatal consequences, is liability triggered under employers’ liability insurance policy? We briefly reported this decision in January (28/LL p7), and Butterworths Personal Injury Service Bulletin for December helpfully analysed the decision. In Bolton MBC v MMI [2006] 1WLR CA 1492, the Court of Appeal had held that liability to compensate falls on the insurer who is at risk at the time when the asbestos-related diseases became symptomatic and not the insurer who was originally at risk at the date of the exposure. However, the judge in the Trigger Group Litigation distinguished it from Bolton on the grounds that that case involved a public liability insurance policy while the Trigger Group Litigation concerned employers’ liability policies. Employers’ liability insurers usually offer cover for ‘injuries caused during the period of insurance’, which would cover an employee who was exposed to the inhalation of asbestos fibres while public liability insurers usually only covered ‘injuries occurring during the period of insurance’. Accordingly, although the time of inhalation of the asbestos dust, there was no actionable injury, the employers’ liability policies in place at that time covered the subsequent onset of injury resulting from that exposure. Accordingly, the insurers were liable to indemnify the employers.