The trigger of cover

Keenly awaited for almost a year, the Court of Appeal handed down its mammoth judgment in the asbestos ‘Trigger Litigation’, Durham v BAI (Run Off) Ltd [2010] EWCA Civ 1096, on 8 October 2010. The court decided, two to one, that in mesothelioma cases, ‘injury sustained’ policy wording did not cover liability incurred by an employer at the point of exposure, but instead focused on the point in time at which the unfortunate victim’s tumour develops. The ruling, if it stands, will mean that many mesothelioma victims will not receive compensation for this deadly condition. The decision is discussed by Neil Hext of 4 New Square.

The science of mesothelioma

Mesothelioma is an insidious disease that, so far as is known, is only caused by exposure to asbestos. It is a form of cancer, the tumour developing in the protective lining of the lungs causing shortness of breath and pain. Once diagnosed the prognosis is bleak: on average the victim will have approximately 14 months to live. The problem that mesothelioma presents in the context of liability insurance is that the progression of the disease is almost glacially slow. It is caused by genetic mutations in the DNA of a cell. It is thought that the asbestos fibres increase the likelihood of these mutations. Several such mutations are required before a cell develops the characteristics of a pre-cancerous cell. Once it does, it divides and multiplies, eventually to form a tumour with its own blood supply. That then leads to further growth, and eventually the death of the victim.