ISSN 1470-8108 Issue 73 Winter 2008-09

Contents:

1. Trigger Happy!
2. Round 3: Another Victory for Dock Workers
3. National Centre for Asbestos-Related Diseases
4. Clydeside Action on Asbestos
5. News Round-up

1. Trigger Happy!

On November 21, 2008, four months after court proceedings ended, Mr. Justice Burton issued a claimants' judgment in six test cases brought by asbestos cancer sufferers which hinged on what is commonly referred to as the “trigger issue.”1 The prime focus of the litigation was to determine at what point in time liability under employers' liability insurance policies for the consequences of occupational exposure to asbestos becomes due (or is triggered): is it when an injured worker was negligently exposed to asbestos (whilst employed in the construction industry or by local authorities in the 1960/70s for example), or when, more recently, the asbestos cancer was diagnosed. Despite the fact that UK insurers had for forty years accepted responsibility for Employers' Liability (EL) mesothelioma claims brought against policies in force at the date of inhalation, a loophole recognized by the Court of Appeal in Bolton Metropolitan Council v Municipal Mutual and Commercial Union [2006] seemed to offer EL insurers a way to off-load historical liabilities.2 Due to the long latency of mesothelioma, the shifting from an earlier to a later period of the responsibility to indemnify an employer for mesothelioma claims could disadvantage claimants as many businesses and even some insurers had ceased trading during the decades between the occurrence of the negligent exposure and the diagnosis of the fatal disease. Although the Bolton judgment considered aspects relating to public and not employers' liability policies, the possibility of applying the Appeal Court's ruling to another type of insurance provided gainful employment for scores of defendants' legal advisers, solicitors and barristers. Within two years of Bolton, the novel defenses devised to counter EL mesothelioma claims were aired during 41 days of hearings at the Royal Courts of Justice.3

Mr. Justice Burton's 100+ page, 300 paragraph decision is as complex as it is detailed. Acknowledging “the considerable consequences for several thousand people” of the trigger test cases,4 Burton highlighted the importance of assigning liability even in cases where defendants or insurers, such as Builders' Accident Insurance Co. Ltd.5 and the Independent Insurance Co. Ltd., are insolvent; eligibility to make an EL compensation claim under the Financial Services Compensation Scheme is wholly dependent on the existence of a valid insurance policy.

Employers' Liability Policy Wording

The judge dealt at length with the specific wording of 9 EL policies issued by 4 companies in the 1940s-1990s, weighing up the meaning and implications of phrases such as:

  • “shall sustain bodily injury or disease”;
  • “shall sustain any personal injury by accident or disease”;
  • “shall sustain personal injury by accident or disease”;
  • “any claim for injury sustained or disease contracted”;
  • “liable to pay damages for such injury or disease or for death resulting from such injury or disease or for death resulting from such injury or disease”;
  • “legally liable to pay compensation for bodily injury or diseases (including death resulting from such bodily injury or disease).”

Does “sustained injury” mean “be caused injury” as the claimants contended, the Judge asked? If it does not, how can the ambiguity over the EL cover afforded to workers who contract mesothelioma after terminating their contractual relationship with their negligent employer be resolved? The argument advanced by the defense that “ex-employees can be covered by some rough and ready construction,” runs counter to the fundamental purpose and public understanding of Workmen's Compensation and Employers' Liability legislation. In paragraph 240, Burton concludes:

“I find it powerfully persuasive that to have a caused wording (or to have a sustained wording construed as meaning be caused) is the only way consistent with public policy, and with the intent of ELCIA [Employers' Liability (Compulsory Insurance) Act 1969] to ensure that the employee injured as a result of the tortious exposure is covered, irrespective of what may happen thereafter.”

Although Burton's judgment upheld the traditional approach to the interpretation of EL insurance and payment of claims for mesothelioma, the financial burden of which falls on the insurer at risk at the date of exposure, he found that “there was no injury at the date of or indeed shortly after inhalation.” He concluded that:

“the starting point for the occurring or (contrary to my conclusions above, the sustaining) of injury/disease in mesothelioma cases is five years prior to diagnosability. I reach this conclusion by reference to the following considerations:

i)    It is probable that at that stage the tumour will be sufficiently large both to be having a sufficient effect on the body and as no longer to be at any risk (subject to there being angiogenesis) of death or defeat at the hands of the bodily defences.

ii)   It is probable that at that stage angiogenesis will have taken place, so as to ensure its independent blood supply and the near certainty of exponential or accelerating growth on to full size, to diagnosability and to death of the sufferer…

I must explain what I mean by starting point. This is that, in a given case, it would be assumed that injury/disease takes place (to take a neutral word) five years prior to diagnosability, unless, in such given case, there is some evidence that the tumour was either faster or slower than the norm, in which case a factual investigation would be necessary.”

Although Burton's five year rule, which halves the previous guideline between the occurrence of injury and diagnosability of mesothelioma, has no relevance to EL insurance policies (unless the decision is reversed upon appeal), it opens up many possibilities for defendants involved in public liability insurance litigation.

Reactions to the Trigger Judgment

Action 1 was brought against BAI (Run Off) Limited (In Scheme of Arrangement), the EL insurer of G & C Whittle Ltd. from 1957 to 1975, on behalf of paint sprayer Leslie Screach who had been employed at the London-based company from 1963-1968. After his death in 2003, his daughter Ruth Durham continued the legal proceedings. Three years later, BAI rejected the claim for Mr. Screach's mesothelioma death relying on the decision in the Bolton case. Solicitors from Irwin Mitchell issued the Durham/Fern Action in the Queen's Bench Division of the High Court. This case was later joined by 5 more which represented other facets of what became known as the “trigger litigation.”

Reacting to the news of Justice Burton's judgment, Mrs. Durham said:

“I am hugely relieved to hear of today's court decision… I miss him every day and no sum of money will ever compensate for the terrible suffering that my father endured. However, I hope that by pursuing this legal action, which will help others in future, it will make his suffering and death more bearable.”

The family of Charles O'Farrell, a steel erector employed by Humphreys & Glasgow6 from 1964 to 1967, also welcomed the judgment. Daughter Maureen Edwards said:

“My dad died a painful death from mesothelioma (2003) and watching him suffer was agonising for all of us. Excess Insurance poured salt into the wound by forcing us to fight them in court to receive compensation (152,000) which we had already been awarded but they refused to pay.

My dad would have been proud today that, with the backing of his union (Unite), we have finally achieved justice for him. But he would have been disgusted by the lengths the insurers went to get out of paying.”7

The General Secretary of the trade union Unite, Derek Simpson, called this a “landmark” victory:

“Thousands of men and women across the UK have been negligently exposed to asbestos by their employers but insurers have tried and failed to use legal technicalities to escape their responsibility to pay compensation under the policies they sold to employers. They sought to avoid their liabilities while pocketing the money.”8

Relieved that this judgment had averted the “catastrophic effect this case might have had on asbestos victims as 'collateral damage' in an insurers war,” Tony Whitston, Chair of the Asbestos Victims Support Groups Forum UK, said:

“the battle for compensation goes on every day as insurers escape liability or insurance they sold simply because the policies cannot be traced as there is no system to centrally register policies. Meanwhile the government steps into the insurers' shoes by paying small lump sum payments instead of insurers paying full compensation. This scandalous situation should cease. Insurers should be required to set up a fund of last resort to pay asbestos victims, as they do for motor traffic victims. Then asbestos victims would not be affected by a case like this.”9

The widow of Ronald Byrnes is one of hundreds of people caught up in the legal stalemate. Her reaction to the news of the claimants' decision issued on November 21 was tinged with sadness:

“my husband never lived to see his employers accept responsibility for his suffering. He would have wanted to see justice done on my behalf, even if not for him. My heartache has been prolonged by the insurers who refused to pay compensation. Today's decision is good news. The insurers should take responsibility and leave it at that. They should stop treating asbestos victims like pawns in a game.”

Judgment was given for claimants in lead cases 1-5 and for Zurich and the local authorities in lead case 6.10 Various parties in the trigger case were granted leave to appeal; it is hoped that expedited Appeal Court hearings will be held in the Summer of 2009. Most observers expect this litigation to go all the way to the House of Lords. In the meantime, thousands of mesothelioma claimants remain in a state of limbo with a stay in place on cases against Builders Accident Insurance Co. Ltd., The Independent Insurance Company Ltd., Excess Insurance Company Limited and Municipal Mutual Insurance Company Limited.11

2. Round 3: Another Victory for Dock Workers

On December 19, 2008, Mr. Justice Silber, sitting in the Queen's Bench Division of the High Court, handed down judgment in the case of Rice and Thompson v the Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 3216 (QB) 12 which confirmed the right of asbestos claimants to be compensated by the Government for hazardous occupational exposures experienced at dockyards run under the auspices of the National Dock Labour Board (NDLB). The claims were brought on behalf of Edward Rice, who died from mesothelioma in 2000, and Robert Thompson, who is debilitated by the asbestos-caused condition diffuse pleural thickening. During the period up to 1967, both men were required to handle cargoes containing asbestos whilst employed at Liverpool Docks. This ruling could pave the way for thousands of former dock workers on Merseyside and elsewhere to obtain compensation from the Department for Business and Regulatory Reform, the Government agency which inherited the NDLB's liabilities, without having to identify individual shipping companies, many of which are no longer trading.

Round 1 of this case was a High Court ruling issued on May 26, 2006 by the same judge; in that instance, Mr. Justice Silber held that the NDLB owed a duty of care for the health and safety of workers in docks throughout England and Wales. Round 2 was the April 4, 2007 dismissal by the Court of Appeal of the Government's appeal.13 The Appeal Court decision was unanimous and categorical:

“(a) The NDLB owed a duty of common law to take positive steps so as to prevent or reduce the exposure of the claimant to asbestos dust following their allocation to or selection by Clan Line; and

(b) … to do nothing was not on the evidence an option available to the NDLB if they were to perform the duty which in my judgment they owed to the claimants.”

The refusal of the Government to accept these findings lead inevitably to Round 3 which saw the litigants return to the High Court. It once again fell to Justice Silber to consider:

  • the veracity of witness reports documenting conditions which prevailed regarding the handling of asbestos cargo within Clan Line ships in the years 1955-1967;
  • how the NDLB should have discharged the duties of care it owed to the claimants in the light of the health risk posed by the unloading of asbestos;
  • whether the NDLB breached those duties and, if it did, whether these breaches caused the injuries sustained by Mr. Rice and Mr. Thompson;
  • what financial damages are payable for these injuries.

The High Court hearings in Round 3 took place on November 3-5, 7 & 12, 2008 and written submissions were served on November 13 & 14, 2008. In the run-up to Christmas, Silber's 41-page judgment was handed down. Amongst his findings were the following:

(a) “The claimants were regularly exposed to and covered by heavy concentrations of asbestos dust in the course of their employment as dock workers whilst unloading asbestos packed in either unlined hessian sacks or paper sacks from Clan Line ships or from damaged lined sacks;

(b) Neither claimant was given any information nor any warning that exposure to asbestos dust would give rise to a risk of pulmonary or any injury whatsoever;

(c) Neither claimant received any training about how to handle asbestos cargo…

(d) The only protection provided against such exposure was the occasional supply of simple muslin or improvised hessian which was used like a surgical mask… In any event, these masks even when issued provided no effective protection to the claimants against the inhalation of asbestos dust; and

(e) No respirators were provided to or used by the claimants when they were at risk of coming into contact and came into contact with asbestos dust.”

Silber's scathing analysis of the NDLB's many statutory failings leaves little doubt about the Board's negligence. Drawing on the historical record and citing medical papers, newspaper articles and government publications about the asbestos risk, Silber noted:

“The NDLB with its duty of care to dock workers ought to have taken steps to acquaint itself with these reports…the NDLB as part of its statutory duty of care and its common law duty of care was obliged to look out for and monitor publications relating to dangers to Mr. Rice and this included the risks of inhaling asbestos dust especially in the light of the previous Annual Report of HM Chief Inspector of Factories and the Wagner article…

The entire responsibility for warning the dock workers fell on the shoulders of the NDLB who with their medical staff must have been or ought to have been aware of the dangers to the health of the claimants in light of all the medical material to which I have referred and which was in the public domain…

No evidence was given of any steps taken by the NDLB which could be regarded as complying with its duty of care to the claimants.”

Evidence the judge draws on from witness statements by dock workers with first-hand experience of the conditions which prevailed during the period in question is informative as much for the substance of what they saw as for the light they were able to shed on the role of the trade unions in the day to day operations of the docks.

As mesothelioma is considered an indivisible disease, the full damages of 138,965.65 were awarded against the Government to Winifred Rice, the widow and executrix of Mr. Rice. The sum awarded to Mr. Thompson was 30,000. Both claimants expressed relief at the judgment with Mr. Thompson telling journalists:

“It's been hard. I've had nightmares over this. I lose sleep. I've seen colleagues die of this and it's a horrible death. Touch wood, I haven't got that at the moment, but I have got the next one to it.”14

Claimants' solicitor Neil Fisher, from John Pickering and Partners, hopes that the judgment will bring closure to the families:

“As the Government has not indicated that it plans to appeal this judgment, we are hoping that after 9 years justice has been obtained by the family of Edward Rice and by Mr. Thompson for the negligent asbestos exposure which impacted so badly on their lives. In the weeks since the judgment was issued, we have had enquiries from others who experienced similar treatment under the NDLB regime. I am in no doubt that more cases will be mounted.”15

3. National Centre for Asbestos-Related Diseases

On December 4, 2008, key stakeholders gathered at the House of Commons to discuss plans to establish a National Centre for Asbestos Related Diseases (NCARD), “an organisation of existing and new research groups around the UK and Ireland, working closely together as a virtual centre and overcoming geographical separation, rather than the establishment of a new 'bricks and mortar' research unit.”16 The meeting, which was held under the auspices of the Parliamentary Asbestos Sub-Committee, was told that the incidence of malignant mesothelioma, the 16th most common cause of UK cancer death, will continue rising during the coming decade. John Edwards, Consultant Thoracic Surgeon and Chair of the British Mesothelioma Interest Group, pointed out that although this disease is the UK's “number one public health disaster… Basic scientists and researchers do not have enough money for research.”17 Paying tribute to the NCARD established in Australia in 2006, Mr. Edwards said that a keynote address in Parliament on May 14, 2008 by NCARD's Director Professor Bruce Robinson “presented the case for the establishment of a NCARD in the UK.” Interested parties have expressed “wide support for the concept,” at meetings held by the British Mesothelioma Interest Group (June 2008) and Mesothelioma UK (October 2008).

Other speakers at the December 4th event included: MP Michael Clapham, Mesothelioma Nurse Consultant Liz Darlison, from Mesothelioma UK, and Dr. Peter Szlosarek, Clinical Scientist/Medical Oncologist from St. Bartholomew's Hospital. The NCARD proposal received considerable support from delegates, many of whom spoke about the practical impact on patients of the lack of research funding and medical progress. Professor Ken O'Byrne, an oncologist from St. James' Hospital, Dublin, said that to attract researchers into this field would require substantial and secure funding.18 Other participants made suggestions regarding strategies to garner the political and financial support required for the proposal to be implemented. A working group is being constituted to follow up on suggestions.

4. Clydeside Action on Asbestos

At the Herald newspaper's annual award ceremony at Prestonfield House, Edinburgh, (November 11, 2008), the achievements of Clydeside Action on Asbestos (CAA) were recognized when the 23 year-old grass-roots group won the coveted Public Campaign of the Year Award for its role in changing Scottish law to help sufferers from asbestos-related diseases. In 2007 following a ruling which ended pleural plaque compensation, CAA helped draft The Damages (Asbestos-related Conditions) (Scotland) Bill to reinstate victims' rights to compensation. In addition, CAA has played an important part in ending an injustice faced by victims who were forced to choose between claiming damages for themselves before they died or letting relatives claim larger post-mortem awards; this improvement, which was enshrined in the amendment to The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, came into force in December 2006.

CAA was selected by a panel of judges tasked with choosing an individual or a group which has engaged “most effectively and innovatively with the political system. A person or group who have defiantly made the politicians sit up and take notice, have remained determined to have their say, fought for their cause and strived to secure change.” Accepting the award on behalf of the Glasgow-based group, Phyllis Craig, CAA's Senior Welfare Officer, paid tribute to Clydebank Asbestos Group and Thompsons Solicitors, both of which have been an integral part of the lobby pressing for these much-needed reforms in Scotland.

On January 18, 2009, a photo-essay was published entitled: In Pictures: The Victims of Asbestos in the newspaper Scotland on Sunday.19 Having begun the article with a snapshot of the work done by CAA, Journalist Peter Ross put the Scottish asbestos tragedy into a wider context:

“…asbestos is a global problem. It continues to be used widely as a building material in poorer countries and, according to the World Health Organisation, it kills at least 90,000 people each year. Some sense of this can be seen in the work of the award-winning photographer Louie Palu who has journeyed from his native Canada to India, England and Scotland, taking stark black-and-white pictures of sufferers. 'No one deserves to die because they go to work and breathe a dust that gives them a death sentence,' says Palu…

'There seems to be no worldwide outrage because it is a silent killer,' he (Palu) says. 'I sometimes imagine that if all the asbestos victims died at once on the streets, people would then grasp that something has to be done.'”

The photographs taken by Palu which are at the end of this article graphically illustrate the horrible effect asbestos has had on individuals and the pervasiveness of the contamination which exists in both developed and developing countries.

5. News Round-up

Literature

Occupational Cancer Prevention in Scotland: a Missing Public Health Priority by A. Watterson, T. Gorman and R. O'Neill is a position paper recently published in the European Journal of Oncology.20 The authors estimate that occupationally-caused cancer could account for 12% of all cancer deaths in Scotland:

“Occupational cancer has been neglected in Scotland as it has been elsewhere in the UK. If all other occupational causes of cancer were discarded, the toll taken by just two types of asbestos-related cancers in Scotland in 200421 would alone be higher than all road traffic fatalities in that year, and would be three and half times higher than Scottish murder.”

Highlighting the lack of action taken by “agencies responsible or apparently responsible for occupational cancer,” the authors urge the Scottish Government to set public health priorities which recognize the elevated damage done by occupational exposures. The paper concludes that the use of IARC Group 1 and Group 2A carcinogens should be phased-out as part of a move towards green jobs in Scotland.

Prosecutions

Details of recent prosecutions for infringements of asbestos regulations were uploaded onto the Health and Safety Executive website on December 12, 2008 and include actions against: LCH Contracts Ltd. and Woolworth plc for asbestos mismanagement, Dean Entertainments for unlicensed asbestos work, various Essex companies for multiple breaches of asbestos safety laws and an Eastbourne resident for unlicensed removal of asbestos.22

Review of Voluntary Code for Tracing Employers' Liability Policies

On December 17, 2008, the Department for Work and Pensions uploaded to its website: The Code of Practice for Tracing Employers' Liability Insurance Policies, Review Statement 1 November 2006 – 31 December 2007.23 A success rate of 35% achieved by the participating insurance companies means that 7,306 out of the 11,245 people, many of whom have occupational diseases, who made enquiries under the voluntary scheme received no assistance whatsoever.

Compounding the dismal overall performance of the service provided by the Association of British Insurers and the Lloyd's Market Association is the fact that searches involving recent policies were only marginally more successful (41%) than those for historic ones, despite an undertaking that records of insurance policies issued since November 1999 would be retained in a searchable format for 60 years. The Review Body expressed its concern and noted that “until the insurance industry ensures an effective and consistent approach to recording ELCI policies details, there will be post-1999 searches that remain unsuccessful.” The Asbestos Victims Support Groups Forum UK has mounted a campaign for the establishment of an insuranceof last resort such as operates in the case of motor insurance. “This would,” according to the Forum's Chair Tony Whitston “of necessity incorporate an insuranceand ensure that past and future insurance policies are honoured and asbestos victims are treated no less favourably than motor accident victims.”

Coroners and Justice Bill

The Coroners and Justice Bill24 was introduced in Parliament on January 14, 2009, along with a revised draft Charter for Bereaved People who come into Contact with a Reformed Coroner System.25

Plaques Ruling

Since the House of Lords issued its ruling ending compensation for pleural plaques, there has been a national campaign by asbestos victims' groups, trade unions and politicians highlighting the injustice of this decision. In the Summer of 2008, the Ministry of Justice mounted a consultation exercise “on the government response to the House of Lords decision in Johnston v NEI International Combustion Ltd, that the existence of pleural plaques does not constitute actionable or compensable damage”; October 1, 2008 was the closing date for submissions.26 An article published on January 15, 2009 reported comments by MP Terry Rooney that “we will receive a statement within the next ten days and hopefully Jack Straw will announce the overturning of the Lords' decision.”27

Future Events

Action Mesothelioma Day

As in previous years, asbestos victims' support groups and other campaigning bodies will mark Action Mesothelioma Day (February 27) with events in Barnsley, Birmingham, Derby, Gateshead, Leeds, Leicester, Liverpool, London, Manchester and Portsmouth. A key theme of this year's activities will be the establishment of a UK research center for asbestos-related diseases. For details of these events please contact: Tracey Heseltine, email: mesothelioma.uk@uhl-tr.nhs.uk

International Mesothelioma Workshop

On February 26 & 27, 2009, an international gathering of experts will address: Advances in the Diagnosis and Management of Mesothelioma at an event being organized by the International Association for the Study of Lung Cancer/International Mesothelioma Interest Group: Mesothelioma Staging Project at the National Heart and Lung Institute in South Kensington, London. The workshop will feature speakers from North America, Europe, Australia and Asia who will discuss a range of subjects including: epidemiology, pathology, chemotherapy, clinical presentation and staging, palliation, immunotherapy and national mesothelioma registries. For more information contact: Eric Lin at: meso09@rbht.nhs.uk or John Edwards at: john.edwards@sth.nhs.uk

Asbestos in Schools: The Silent Killer

On March 12, 2009, the Institute of Physics, London will be the venue for a conference which will examine the scale of asbestos contamination of UK schools and suggest solutions for protecting schoolchildren, teachers and staff who use these premises. Amongst the experts taking part are: Michael Lees, MP Michael Clapham, Trade Unionists Sarah Lyons and Hank Roberts, Occupational Hygienist Robin Howie, Consultant Thoracic Surgeon John Edwards and technical expert John Richards. For more information phone: 01722 717035 or fax: 01722 717035.

Mesothelioma – The Wider Perspective!

On May 12, 2009, the Kent & Medway Cancer Network, Medway NHS Trust is hosting a meeting in Royal Tunbridge Wells which will feature presentations by leading UK mesothelioma experts including: Drs. Neil Goldsack, Alaisdair Stewart, Jeremy Steele, Jackie Fisher, Michael Sheaff, Adrian Morris and Professor Tom Treasure. Nursing specialists Liz Darlison, Dame Gillian Oliver and Sally Moore will also be participating. For more information, please contact Frances McKay on 01634 825 212 or Caroline Williams on: 01634 825 391.

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1 Thanks to Helen Ashton, Associate Solicitor from Irwin Mitchell, for her invaluable assistance with the complexities of this case. Any remaining errors remain the responsibility of the author. The six actions were brought by: employees, still solvent employers (including local authorities) and insurers, four of whom favored “the date of tumour position,” and one, Zurich, which took “the date of inhalation position.” The test cases were: Durham v BAI (Run Off) Limited (In Scheme of Arrangement), Fleming & Eddleston v Independent Insurance Company Limited (in Provisional Liquidation), Edwards v Excess Insurance Company Limited, Thomas Bates & Son Limited v BAI (Run Off) Limited, Akzo Nobel UK Limited & Amec PLC v Excess Insurance Company Limited.
See: http://www.bailii.org/ew/cases/EWHC/QB/2008/2692.html

2 There was never any doubt that insurers would take full advantage of the Bolton judgment to reject claims; between them the four insurers in the trigger litigation withheld payments averaging 125,000-175,000 in 645 mesothelioma cases since the Bolton verdict was handed down. (Using a figure of 150,000 per case and multiplying it by 645 gives a figure of 96,750,000; with so much money at stake, there is little doubt that defendants will exhaust all the legal options open to them.)

3 The hearings took place in the High Court of Justice, Queen's Bench Division on June 3-6, 9-13, 16-20, 23-26, 30, July 1-4, 7-11, 14-17, 21-25, 28-31, 2008. In his ruling, Mr. Justice Burton noted that 7 leading and 13 junior Counsel instructed by 14 law firms appeared before him during the proceedings.

4 Although this litigation only involves mesothelioma, commentators predict its outcome could have a knock-on effect on the rights of people bringing cases for asbestosis or other latent occupational diseases and/or injuries. According to asbestos specialist Ian McFall, the outcome of the trigger litigation will also define “the contractual indemnity rights of employers against their insurers and the rights of contribution between insurers across the employers liability market.”

5 Builders Accident Insurance Co. Ltd. (BAI) was involved in lead cases 1 & 4 as BAI (Run Off) Limited (In Scheme of Arrangement).

6 This company is in liquidation having ceased trading in 1986. At the time Mr. O'Farrell was exposed to asbestos, the company's EL insurer was Excess Insurance Company Limited.

7 Unite Press Release. Unite backs High Court test case on behalf of thousands of asbestos victims. June 2, 2008. http://www.amicustheunion.org/default.aspx?page=8523

8 Unite Press Release. Unite defends the right to mesothelioma compensation. November 21, 2008.

9 Press Release by Asbestos Victims Support Groups Forum UK. Asbestos Judgment 21st November 2008 Safety Catch Applied to “Trigger Issue.” November 21, 2008.

10 It is likely that any court-awarded compensation received by the claimants will be subject to repayment should the case be lost on appeal.

11 Ashton H. Briefing on the Trigger Litigation. Submitted to the Mesothelioma U.K. Healthcare Professionals Newsletter. Received (pre-publication) January 15, 2009.

12 http://www.bailii.org/ew/cases/EWHC/QB/2008/3216.html

13 Kazan-Allen L. Legal Precedent for UK Dockers! British Asbestos Newsletter. Issue 66. Spring 2007

14 Schofield B. Mersey dockers celebrate asbestos victory. Liverpool Daily Post. December 20, 2008.

15 The statement by Mr. Fisher was made in an interview on January 20, 2009; at that time, he indicated that the government only has until the end of January to appeal this judgment.

16 Edwards J. Proposal for the Establishment of the UK National Centre for Asbestos Related Disease. Paper distributed at the meeting on December 4, 2008.

17 According to Mr. Edwards: “Government funding of asbestos and mesothelioma basic science research is severely limited (in the UK) with only a single project grant funded by Cancer Research UK.” In an article published on December 12, 2008, Journalist Bernard Murphy pointed out that mesothelioma mortality “does not rate a mention in the one-year review of the Cancer Reform Strategy published last week.”
Murphy B. Mesothelioma: UK experts life the lid on a global “silent epidemic”. Clinica 1329 December 12, 2008. Accessed December 15, 2008.

18 Minutes of Stakeholders Meeting on December 4, 2008 compiled by Liz Darlison.

19 Ross P. In Pictures: The Victims of Asbestos. Scotland on Sunday. January 18, 2009. http://scotlandonsunday.scotsman.com/spectrum/In-pictures-The-victims-of.4884891.jp

20 Eur. J. Oncol., vol. 13, n.3, pp. 161-169, 2008; not online.

21 In 2004, there were 358 deaths from mesothelioma and lung cancer in Scotland; deaths from cancer of the larynx due to asbestos are not recognized or compensated in the UK as being occupationally caused, as they are in other countries.

22 http://webcommunities.hse.gov.uk/inovem/inovem.ti/asbestos.licensing/view?objectId=105168

23 http://www.dwp.gov.uk/publications/dwp/2008/ELCI-CodeofPracticeStatement2006-07.pdf

24 http://www.publications.parliament.uk/pa/cm200809/cmbills/009/2009009.pdf

25 http://www.justice.gov.uk/publications/charter-bereaved.htm

26 http://www.justice.gov.uk/publications/cp1408.htm

27 Compensation ruling for pleural plaques 'by end of month'. January 15.2009. Telegraph & Argos.
http://www.thetelegraphandargus.co.uk/news/4051302.Victims____payouts_decision____overdue___/

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Compiled by Laurie Kazan-Allen
©Jerome Consultants