Thousands of families bereaved by the asbestos cancer mesothelioma will discover this week whether insurance companies will compensate them for the deaths of their loved ones. The Court of Appeal will rule in a test case on Friday if insurers must pay out on company policies that existed when people were exposed to the deadly dust.
An estimated 6,000 families of victims have been waiting for compensation for more than five years while insurers squabble over whether claims can date back to the moment a person is exposed to asbestos, or the moment they develop the disease from it – which can be up to 50 years later.
Mesothelioma sufferers – or, in the majority of cases, their surviving families – would gain an average of £100,000 each in compensation for negligent exposure to deadly asbestos if the court upholds an earlier 2008 ruling. This found that industrial insurers should pay out on claims relating to the time from which victims are exposed to the deadly fibres.
However, insurers appealed the decision. If their appeal is successful, many widows affected face the prospect of no compensation at all. This is because the company the victim worked for no longer exists or because the insurance policy that existed at the time cannot be found.
For other victims of asbestos exposure at work, it is simply a case of years of delay while two or more insurers argue about which is liable for compensation. As mesothelioma is such an aggressive cancer, this drawn-out case has meant that almost all of the victims are now dead, leaving their relatives hoping for a ruling in their favour.
Mesothelioma
The Government also stands to lose millions on the outcome of the ruling. If judges rule that insurers do not have to pay out, the Government will face demands for compensation from employees of former nationalised industries and organisations such as the Ministry of Defence. They will also lose out on the thousands of pounds of benefits paid to victims which are clawed back when insurance companies admit liability.
Ian McFall, head of asbestos policy at Thompsons solicitors, said: “This is potentially the most important test case in the history of asbestos litigation. For over 50 years it has been the insurer on cover at the time the exposure took place which responds to and pays the claim when someone develops mesothelioma. The insurers now argue that because of the way policies are worded they only apply to the time they got ill. We have hoped and expected that the court would continue to hold insurers liable for policies that were sold to employers at the time workers were being negligently exposed to asbestos.”
Hugh Robertson, head of health and safety at the Trades Union Congress, said: “We’ve been through this so many times with the insurance industry trying to claw back from their moral and legal responsibilities. By continually appealing and drawing out this process as long as possible they’re ensuring that victims are never able to put their financial affairs in order before their inevitable death. These tactics are so irresponsible because you’re talking about a disease which, on average, results in death just 18 months from diagnosis. This isn’t just a tragedy for the families, but for the victims, who are denied even that little peace of mind.”
Mesothelioma
If the insurers’ appeal is successful, hundreds of firms may be left effectively uninsured to pay for any claims. Experts warn some could be forced out of business if they have to fund compensation themselves.
Some insurers have been embarrassed by the decision to contest the case. A spokesman for the Association of British Insurers admitted: “This is being brought by a small group of run-off insurers against the views of the majority of UK insurers. Most active insurers are happy to pay to people with employers’ liability policies.”
Insurers and victims are expected to appeal to the Supreme Court if they lose, delaying any compensation still further. Tony Whitson, chair of the Asbestos Victims Support Group, said: “Whatever happens, it is likely this will be appealed and go to the Supreme Court. In the meantime, people are dying, their families are trying to cope and insurers are just fighting among themselves with no regard for people.”
The Independent on Sunday called on the Government last year to stand up to the insurance lobby and ensure proper compensation. Following the campaign, the Labour government pledged a £40m package of measures, including a research centre, support for mesothelioma victims and to investigate an insurance industry-funded compensation scheme for victims whose policies could not be traced. Now the research centre has been put on hold and there is no sign of the Government pursuing insurers for a compensation fund of last resort.
Mesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body’s internal organs, the mesothelium. It is usually caused by exposure to asbestos.
Its most common site is the pleura (outer lining of the lungs and internal chest wall), but it may also occur in the peritoneum (the lining of the abdominal cavity), the heart, the pericardium (a sac that surrounds the heart) or tunica vaginalis.
Most people who develop mesothelioma have worked on jobs where they inhaled asbestos particles, or they have been exposed to asbestos dust and fiber in other ways. It has also been suggested that washing the clothes of a family member who worked with asbestos can put a person at risk for developing mesothelioma. Unlike lung cancer, there is no association between mesothelioma and smoking, but smoking greatly increases the risk of other asbestos-induced cancers. Compensation via asbestos funds or lawsuits is an important issue in mesothelioma (see asbestos and the law).
Mesothelioma
The symptoms of mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall) or chest wall pain, and general symptoms such as weight loss. The diagnosis may be suspected with chest X-ray and CT scan, and is confirmed with a biopsy (tissue sample) and microscopic examination. A thoracoscopy (inserting a tube with a camera into the chest) can be used to take biopsies. It allows the introduction of substances such as talc to obliterate the pleural space (called pleurodesis), which prevents more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or sometimes surgery, the disease carries a poor prognosis. Research about screening tests for the early detection of mesothelioma is ongoing.
Symptoms or signs of mesothelioma may not appear until 20 to 50 years (or more) after exposure to asbestos. Shortness of breath, cough, and pain in the chest due to an accumulation of fluid in the pleural space (pleural effusion) are often symptoms of pleural mesothelioma.
Symptoms of peritoneal mesothelioma include weight loss and cachexia, abdominal swelling and pain due to ascites (a buildup of fluid in the abdominal cavity). Other symptoms of Peritoneal Mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by mesothelioma or by other, less serious conditions.
Mesothelioma that affects the pleura can cause these signs and symptoms:
* Chest wall pain
* Pleural effusion, or fluid surrounding the lung
* Shortness of breath
* Fatigue or anemia
* Wheezing, hoarseness, or cough
* Blood in the sputum (fluid) coughed up (hemoptysis)
In severe cases, the person may have many tumor masses. The individual may develop a pneumothorax, or collapse of the lung. The disease may metastasize, or spread, to other parts of the body.
Tumors that affect the abdominal cavity often do not cause symptoms until they are at a late stage. Symptoms include:
* Abdominal pain
* Ascites, or an abnormal buildup of fluid in the abdomen
* A mass in the abdomen
* Problems with bowel function
* Weight loss
In severe cases of the disease, the following signs and symptoms may be present:
* Blood clots in the veins, which may cause thrombophlebitis
* Disseminated intravascular coagulation, a disorder causing severe bleeding in many body organs
* Jaundice, or yellowing of the eyes and skin
* Low blood sugar level
* Pleural effusion
* Pulmonary emboli, or blood clots in the arteries of the lungs
* Severe ascites
DYING asbestos victims in South Tyneside will be robbed of compensation after a controversial Court of Appeal ruling, campaigners warned today.
There is dismay after the ruling yesterday cast doubt on thousands of claims by people suffering from the killer disease, mesothelioma, which is triggered by exposure to asbestos fibres.
Judges were unable to agree on a previous High Court ruling
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that insurers are liable for damages from the time when victims are exposed to asbestos.
There are warnings the ruling – part of a complicated, 366-page judgement – could spark confusion and anxiety.
Insurers can now argue that compensation should only be paid from the onset of the symptoms, while solicitors for victims say it should be from the time of exposure.
Anne Craig, of Hebburn, an asbestos campaigner and an official of the Mick Knighton Mesothelioma Research Fund, whose husband, David, died of mesothelioma, said: “This ruling is devastating news for people suffering from mesothelioma – now, and in the future.
“There is a very long incubation period for the disease, and this judgement could mean victims will no longer be able to claim from the time they were originally exposed to asbestos.
“This could have serious, long-term implications and the matter will definitely be raised at the next meeting of the all-party Asbestos Forum, which I will attend at the Houses of Parliament, on November 10.”
Officials of the Union of Construction Allied Trades and Technicians (UCATT) have blasted the confusing Court of Appeal ruling, which it is feared could prevent thousands of dying asbestos victims from claiming compensation.
UCATT general secretary Alan Ritchie said: “This decision is disgraceful and perverse. This is not justice.
“Victims who were needlessly exposed to asbestos, will be prevented from claiming compensation, leaving the victim and their family destitute.”
Roger Maddocks, a partner at Irwin Mitchell Solicitors, Newcastle, specialists in occupational disease claims, said: “Unfortunately, this ruling complicates the situation and could mean fewer people making successful claims and more insurance companies evading or avoiding settling compensation cases.”
http://www.shieldsgazette.com/news/Ruling-threat-to-asbestos-claims.6573335.jp
Asbestos sufferers were left reeling by a Court of Appeal ruling today which could allow insurers to exploit a legal loophole to deny compensation to thousands of terminally ill victims.
The decision reverses a 2008 High Court ruling that employers’ insurers at the time of exposure to the lethal substance were liable to pay out on work-related mesothelioma claims.
Insurers appealed against the decision and Court of Appeal judges ruled today that in certain cases the responsibility lay with the employers’ insurers only at the onset of symptoms, which can be 40 to 50 years after initial exposure.
The original High Court hearing examined a number of cases where insurers refused to pay out.
They included that of Charles O’Farrell who died in 2003 after being exposed to asbestos while working as a steel erector for Humphreys & Glasgow, which was insured at the time by Excess Insurance Company, in the 1960s. The employer ceased trading in 1992.
Excess Insurance argued that it was 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 Mr O’Farrell had not “sustained injury” until he developed mesothelioma years later.
Mr O’Farrell’s daughter Maureen Edwards condemned the ruling.
“My dad died a painful death from mesothelioma. Watching him suffer was agonising for all of his family,” she said.
“My dad would have been disgusted by the lengths the insurers have gone to get out of paying.”
In effect the ruling opens the door for insurers to revisit their initial policies and scour the small print for get-out clauses, not just in mesothelioma cases but those involving any other form of “latent” disease.
Thompsons Solicitors head of asbestos policy 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.
Asbestos Victims Support Groups Forum chairman Tony Whitston said: “This is a disastrous decision.
“Thousands of dying asbestos victims will lose compensation and all will live their last days in uncertainty. As a last resort, the government must overturn any judgment which upholds the Court of Appeal decision.”
Trade union leaders also expressed their disgust at the attitude of the insurers and the court’s ruling.
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.”
Ucatt general secretary Alan Ritchie said: “This decision is disgraceful and perverse.
“This is not justice. Victims who were needlessly exposed to asbestos, will be prevented from claiming compensation, leaving the victim and their family destitute.”
It is anticipated that the case will be appealed to the Supreme Court.