A Court of Appeal decision today leaves dying people and their families unsure whether they will be entitled to compensation after insurance companies were partly successful in a test case about who picks up the bill in claims for the fatal asbestos illness, mesothelioma.

The Court of Appeal ruled that the High Court was wrong when it decided, in 2008, that the insurers who should pay are those who provided cover to the employer at the time of the asbestos exposure.

The Court of Appeal has decided that in some cases the employers’ liability insurance is “triggered” not by the exposure to asbestos but by the development of the disease which is always decades later, by which time there is no insurance in place to respond to the claim. The outcome means that in every case the exact words used in the insurance contract will have to be studied and could leave many victims with no compensation.

Exposed to asbestos while working

The original nine-week court battle in the summer of 2008 examined a number of cases where the insurers refused to pay out. They included Charles O'Farrell’s case. Charles was a retired member of Unite the Union who died in 2003 having been exposed to asbestos while working as a steel erector from 1964 to 1967 for Humphreys & Glasgow Limited who were insured at the time by Excess Insurance Company Limited. The employer ceased trading in 1992.

Excess Insurance argued that they were not liable to pay out because, according to the wording of their policy, employees had to “sustain injury” at the time they were working for the employer. The Court of Appeal decided that Charles did not “sustain injury” until he developed mesothelioma many years later.

Asbestos victims now face more uncertainty

Unite Joint General Secretary, Derek Simpson said: "This is the ultimate insult for people suffering, or who have watched a loved one suffer, a painful and degrading death from industrial disease. Insurers banking premiums and then escaping paying out compensation by relying on policy small print is obscene.

“Asbestos victims now face more uncertainty which is the last thing they need. Unite will continue the legal and political fight to achieve justice for our members and all victims of asbestos.”

“At a time when the government is seeking to save money this decision will prevent the DWP being able to recoup state funded benefits from insurers, which will inevitably lead to more pressure on public funds.”

Head of Asbestos Policy

Head of Asbestos Policy at Thompsons Solicitors, Ian McFall said: "Insurance companies sold policies to cover risk. Now that risk has become reality they have resorted to picking apart the words in their own policies. This decision means some insurers are required to pay while others are not, depending on words such as “injury sustained” or “disease contracted” used in insurance contracts written decades ago.

“Try explaining that logic to people diagnosed with fatal illness caused by the negligence of their employers. This leaves a black hole in the protection that employers’ liability insurance was intended to provide.”

Charles' daughter, Maureen Edwards said: "My dad died a painful death from mesothelioma. Watching him suffer was agonising for all of his family. His employer’s insurers forced this fight to avoid paying out compensation he had already been awarded. The insurers’ attitude is difficult for us to understand.”

"My dad would have been disgusted by the lengths the insurers have gone to, to get out of paying."

This news story was also published by Post Online and Morning Star.