Employers’ liability and mesothelioma: contribution and allocation

The law in seeking to determine the compensation rights of the victim to the dreadful disease of mesothelioma, the result of exposure to asbestos, has faced two difficulties: when does the victim have a claim against the person who exposed the victim to liability; and in which circumstances does the person guilty of exposure have a right to claim against its liability insurers. These matters have been worked out in a series of decisions of the Supreme Court, supplemented by legislative intervention.

However, one fundamental question remained unresolved: if a number of employers have exposed the employee to asbestos, and all are equally liable to the employee, what is the extent of the liability of any one of the insurers on risk in the relevant period. This question has now been answered by a seven-judge panel of the Supreme Court in Zurich Insurance plc UK Branch v International Energy Group Ltd [2015] UKSC 33. The outcome is that liability is spread on the principle of time on risk, but the judgments in the Supreme Court provide two entirely different routes to that conclusion.