The long awaited decision in the case of Durham v BAI has been issued today by the Supreme Court. The so called “Trigger Litigation” relates to the interpretation of Employers’ Liability insurance contracts.
The Court required to determine which Employers’ Liability insurance policy applied – the one which was in force at the date that an employee was exposed to asbestos dust, which resulted in the development of an asbestos related disease, or the date when symptoms of that disease commenced. With Employers’ Liability policies, the wording generally refers to “injury sustained” or “disease contracted”.
The Supreme Court ruled (by a 4:1 majority) that it was the insurance policy in place at the date of exposure, rather than when symptoms commenced, that should apply to the claim.
The result of this case is that employees who were exposed to asbestos in the employment of a company which no longer exists can look to the insurer of that company at the date of exposure to asbestos to meet his or her personal injury claim.
This is a different position from Public Liability policies which generally refer to “injury occurring”. In those cases, insurance policies in force at the date symptoms commence will continue to apply.
If you have any concerns regarding the effect of this case on your business, or indeed the other recent significant developments in disease litigation in Scotland, please contact us.
On March 28, 2012