The Employers’ Liability Policy ‘Trigger’ Litigation

It is hard to think that those who discovered the ‘miraculous’ industrial properties of asbestos in the 19th century can have imagined what devastating consequences it could have for those employed to work with it. Still less, one suspects, did the draftsmen of the then-novel employers’ liability policies predict what difficulties those consequences would cause for their wordings. In the law of insurance, asbestos-related disease has created its own set of problems, and it is in this context that the so-called Employers’ Liability Policy ‘Trigger’ Litigation arose. Durham v BAI (Run Off) Ltd [2008] EWHC 2692 (QB), six lead cases heard by Mr Justice Burton over a period of two months, judgment being handed down on 21 November 2008, is discussed by Neil Hext of 4 New Square.

The background

The dangers of exposure to asbestos are now well known. Of the various diseases that it causes, mesothelioma is possibly the most frightening. Asbestos fibres work their way into the lining of the lung where, if one is unlucky, they can trigger the process of change that leads to cancer. The malignant cells multiply and eventually form a tumour. It is only when the tumour is far advanced that the person starts to experience symptoms. At that point the prognosis is terminal, with patients often having only months to live. The whole process takes years – on average about 40 from exposure to diagnosis. Indeed, because of the extremely long gestation of the disease, mesothelioma was not really recognised as a discrete condition until the 1960s, decades after its use in industry had become widespread.