The Myths and Facts of Mesothelioma - خرافات وحقائق مرض ميزوثيليوما الرئوي


 

The Myths and Facts of Mesothelioma
خرافات وحقائق مرض ميزوثيليوما الرئوي

 
Mesothelioma is a severe disease that is thinning out its roots everywhere in the world especially in United States of America. It is a lethal form of cancer that is dreaded across the globe. For though there is medication to handle the disease’s symptoms, a cure to mesothelioma is still missing.
مرض الميزوثيليوما هو مرض خطير، بدأ في مد جذوره في كل أنحاء العالم، وخاصة في الولايات المتحدة الأمريكة.  إنه سرطان مميت رُهِب حول الكرة الأرضية.  وهناك أدوية للتعامل مع أعراض هذا المرض، على أنه لا يوجد علاج له حتى الآن.
Excess confrontation of asbestos is posited as the primary cause of mesothelioma.
Asbestos is a naturally occurring mineral that is used in insulation, clothing and fire-resistant materials. But its usage is often less significant than the disasters caused by it. For those who work with asbestos, breathe or inhale the infesting tiny asbestos particles that result in development of mesothelioma and other Asbestos Related Diseases (ARDs). Initially people were unaware of the damaging nature of these particles. It was discovered only lately through various tests such as X-Rays, MRI tests i.e. Magnetic Resonance Imagery and CAT scans or Computed Axial Tomography scans.
 
وتم تقرير السبب الأساسي للميزوثيليوما، وهو التعرض لمادة الأسبستوس (الحرير الصخري).
والاسبستوس هو معدن طبيعي، يُستخدم في العزل، والملابس، والمواد المقاومة للحريق.  ولكن إستخداماته أقل قيمة بمقارنتها بالمصائب التي يسببها.  فبالنسبة لمن يعملون في مجال الإسبستوس، ويتنفسون أو يستنشقون الجسيمات الصغيرة الخاصة به، والتي تؤدي بدورها إلى تطور الميزوثليوما، وبعض الأمراض التي لها علاقة بمادة الأسبستوس ARDs.  وفي البداية لم يكن الناس على دراية بالطبيعة المدمرة لهذه الجسيمات.  وتم إكتشافه بعد ذلك من خلال فحوصات عدة مثل الآشعة السينية، وفحوصات التصوير؛ أي التي تتم من خلال صور الرنين المغناطيسي والآشعة المقطعية أو المسح المحوري المحسوب.
Mesothelioma’s very cause has become its bone of contention. This is because numerous asbestos workers and consumers who have been inflicted by this deadly disease claim that they were not intentionally forewarned of the perils of this material. Consequently lawsuits were and are till date filed on these companies. However, it is a myth to think that these court cases have driven many asbestos-manufacturing companies to bankruptcy. The facts reveal that many such companies have survived under the protection of Chapter 11 and that they have in turn used their insolvency to pay off their former debts and have reorganized themselves by it. But this is not the only myth associated with mesothelioma, there are countless others.
لقد أصبح سبب مرض ميزوثليوما وحده قضية جدلية.  بسبب أن هناك عدد ضخم من العمال والمستهلكين الذين أصيبوا بهذا المرض الفتاك، يقولون أنهم لم يتم تحذيرهم عن عمد بأخطار هذه المادة.  وبناء على ذلك، تم رفع قضايا -ومازال-  ضد هذه الشركات.  بيد أنه من الخادع أن نظن أن هذه الحالات القضائية قد دفعت العديد من شركات صناعة الأسبستوس إلى الإفلاس.  وتشير الحقائق إلى بقاء مثل هذه الشركات على الساحة، وذلك تحت حماية فصل رقم 11 (من القانون الأمريكي)، والتي بدورها إستخدمت إفلاسها في دفع ديونهم السابقة بعيداً، وهذا ساعدهم على إعادة تنظيم أنفسهم مرة أخرى!  ولكن ليست هذه هي الخرافة الوحيدة الخاصة بالميزوثليوما، فهناك عدد لا نهائي آخر.
1. One universally known myth is that nothing can be done after a person is in the grip of mesothelioma. Though there is no cure for this unsympathetic form of cancer, some medicines can help with lifestyle quality and symptoms.
1- من أحد الخرافات المشهورة على مستوى العالم، أنه لا يمكن فعل أي شيء للشخص الذي يقع في براثن الميزوثليوما.  وإن لم يكن هناك علاج لهذا النوع القاسي من مرض السرطان، فهناك بعض الأدوية التي ترقي من مستوى الحياة والأعراض.
2- يشيع بين الناس أن السبب الوحيد لتفشي هذا المرض، هو العمل في المناجم، واللعب في الأكوام التي تحيطك بالأبستوس، والبقاء بجانب شخص يعاني من الميسوثليوما. ولكن في الواقع، أن ميزوثليوما وأي مرض ناتج عن مادة الإسبستوس غير معدي، ون هناك بعض الأفراد المصابين من الذين لم يقوموا بممارسة أي من هذه الأعمال. (ترجمة الفقرة التالية).

2. People commonly believe that working in mines and playing in piles where you are surrounded by asbestos and staying close to a person suffering from mesothelioma are the only factors responsible for its outbreak. But in reality, mesothelioma and any other ARD is not a communicable one and individuals who have never taken up any such tasks are even inflicted with it.

 
3. The next important thing hovering on people’s mind related to mesothelioma lung cancer is smoking. Some believe that smoking invokes this disease. But the truth is that those who smoke and are exposed to asbestos perhaps involve the highest risk of being infected by mesothelioma. But there are innumerable patients of this ARD who have never smoked even a single cigarette throughout their lives.
3- الشيء التالي المعلق في أذهان الناس المتعلق بمرض سرطان الرئة الميسوثيليوما هو التدخين.  فالبعض يظن أن التدخين يُحدِث هذا المرض. ولكن الواقع أن المدخنين الذين يتعرضون لمادة الأبستوس أحياناً يكونون أكثر الناس عرضة للإصابة بمرض الميزوثليوما.  ولكن أيضاً هناك عدد لا يحصى من مرضى الأمراض المتعلقة بمادة الاسبستوس المسرطنة، من الذيم لم يدخنوا ولا سيجارة واحدة طوال حياتهم.
4. Those who think that an exposure to asbestos will result in an instant exhibition of its symptoms are even wrong. According to medical science, the effects remain latent and unknown for 10-40 years.
4- كذلك يخطأ هؤلاء الذين يظنون أن التعرض لمادة الآبستوس سوف يؤدي إلى ظهور أعراض المرض عليهم على الفور.  وطبقا للعلوم الطبية، قد تبقى الآثار كامنة وغير معروفة لمدة تتراوح ما بين 10-40 عاماً.

5. Generally it is deemed that even a slight exposure to asbestos particles leads to mesothelioma. So if these fibres are detected in your house or office, they should be removed as soon as possible and all the materials that came in contact with it should be thoroughly cleansed. But this is not what is actually required. An improper hurried removal can be extremely hazardous since these particles easily get mixed in the surrounding air and cause damage. The best technique to ward off the threat of asbestos particles is to properly cover the affected area. Moreover, this task should not be taken up by any naïve individual. Only the skilled certified asbestos abatement professionals should be called to do this job.

 
5- ولكن عامة، فمن المعروف أن أي تعرض لجزيئات الأبستوس ولو كان بسيطاً يؤدي إلى سرطان الميزوثليوما.  لذا فإذا إكتشفت هذه الألياف في منزلك أو مكتبك، يجب أن يتم إزالتها على الفور، ويجب أن يتم التنظيف الجيد جداً لكل المواد التي كانت على إتصال بها.  ولكن ليس هذا بالضبط هو المطلوب.  فأي محاولة متعجلة غير سليمة لإزالتها من الممكن أن يكون ذو عواقب وخيمة، حيث أن هذه الجزيئات من السهل أن تمتزج مع الهواء المحيط وتسبب أضراراً.  إن أفضل أساليب المعالجة لتهديد جزيئات الأبستوس هو عن طريق التغطية الجيدة للمنطقة المصابة.  علاوة على ذلك، فهذه المهمة لا ينبغي أن توكَل لأي شخص ساذج.  فقط إلى محترفي إزالة الأبستوس المصدَّق عليهم.
6. A number of people are of the opinion that Chrysotile is a safe form of asbestos. But researches have shown that all forms of asbestos including the largely used Chrysotile are effective in causing Mesothelioma and other ARDs like lung cancer, asbestosis etc.
6- ويظن البعض أن مادة الكريسوتايل هي شكل جيد للأبستوس.  ولكن أثبتت الأبحاث أن كل أشكال الأبستوس -ومنها مادة كريسوتايل المستخدمة بكثرة- له تأثير في الإصابة بمرض الميزوثليوما وبعض الأمراض الأخرى المتعلقة بمادة الابستوس مثل سرطان الرئة ومرض الأبستيوسيس.. إلخ

mesothelioma travel insurance 2014

the travel insurance saga 

 mesothelioma travel insurance 2014

mesothelioma travel insurance 2014

mesothelioma travel insurance 2014

 

If you dip into the blog from time to time, you will know that Steve's mesothelioma has been stable on his last three assessments and that we have been out and about over the last year, traveling extensively in the UK on short breaks and visiting family and friends. 


You will also know that in spite of the cobweb of meso cancer cells lining his right lung like a thin rind, Steve is fit enough to jog around the park and walk into town and back. In fact, in that respect, he probably compares well with men a lot younger in years, especially those who smoke or are seriously overweight.  Currently he's not on medication, doesn't need a mobility aid or use oxygen.


How ironic therefore that when we decide to take a week's holiday abroad, getting travel insurance with his pre-existing medical condition is proving to be an uphill struggle.  So, for everyone out there with mesothelioma who wants to go overseas for a short break, here's a list of insurance companies who will decline cover, even though most of them are listed on the Macmillan website as businesses who specialize in providing insurance to people with pre-existing medical conditions, including cancer. 


Save yourself the time, frustration and the cost of phoning the following companies if you want travel insurance which takes your mesothelioma into account - you will be turned away:

  • Saga
  • Age Concern
  • Freedom Insure
  • Travel Insured
  • Able2Travel
  • It's so easy
You WILL probably be able to get insurance which covers your mesothelioma from the following companies, but at a cost...In our case the price quoted by one company for one week's cover in an EU country exceeds the cost of our entire holiday (flights and accommodation for two!) and the other is more than the cost of Steve's flight.  It's like having to pay for Leo as the uninvited guest!
  • All Clear (£653.00 for Steve)
  • Free Spirit (£205.49 for Steve)
  • Insure Cancer ("in the hundreds" subject to written confirmation by Steve's oncologist that he is fit to fly)
As I write, we are still waiting to hear back from JD Travel Insurance who are brokers, but I'm not holding my breath.  

I think we will take the pragmatic approach and take out an insurance policy which waives any claim directly or indirectly related to Steve's medical condition, but which covers him for all the other usual stuff like delays, loss of luggage, theft etc.  

Having spent most of yesterday and part of this morning on this task I have had enough of answering more questions than the Spanish Inquisition, then being put on hold and having to listen to some horrible muzac only to be told that cover has been declined. Life's too short. And it brings home the horrible reality of being diagnosed with this disease. The financial implications of traveling abroad from now on are likely to get worse rather than better. Hardly surprising that people in Steve's circumstances pursue compensation claims for damages.

We'll need a holiday to recover from this less than joyous experience....

mesothelioma insurance payouts

 mesothelioma insurance payouts

Asbestos: court ruling opens way for insurance claims

Chest X-ray Mesothelioma is a form of cancer which can take decades to develop
Continue reading the main story

Related Stories

The UK Supreme Court has made a ruling which could allow thousands of insurance claims by families of people who died after exposure to asbestos.
The court placed insurance liability at the time an employee was exposed to asbestos, not when symptoms appeared.
Relatives of workers who died of the cancer mesothelioma want to make claims on policies dating from the 1940s.
One insurance firm in the case said the ruling was not its "favoured outcome" but welcomed the clarity it brought.
The Association of British Insurers welcomed the ruling, and blamed a small group of insurers for the legal battle.
The Supreme Court was asked to rule on the issue after judges in lower courts failed to agree.
Families had a success in 2008, when the High Court said firms' insurers at the time workers inhaled fibres were liable.
But two years later the Court of Appeal said that in some cases liability was triggered when symptoms developed - which could be decades after exposure.
Lawyers said the appeal court ruling had left victims' families facing "confusion and uncertainty".
The new ruling by a panel of five Supreme Court justices states that the disease can be said to have been "sustained" by an employee in the period when it was caused or initiated.
Continue reading the main story

Case study: Leslie Screach

Les Screach and Ruth Durham
Ruth Durham brought a claim in memory of her father Leslie Screach (above), who died of mesothelioma in 2003.
He was exposed to asbestos fibres between 1963 and 1968 while working as a paint sprayer in west London.
Mrs Durham said: "I am delighted to hear of the court's decision.
"I was determined to see this through with a positive outcome for all those who, like my dad, suffered so terribly because of someone else's negligence.
"During the Second World War, Dad learned to use sign language and when I decided to learn, we used to practise together.
"It became our special way of communicating with one another and, when he was diagnosed with cancer, he couldn't bring himself to tell me directly and just made the sign for Cancer to let me know."
One of the judges, Lord Clarke, said: "The negligent exposure of an employee to asbestos during the [insurance] policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer's obligation."
Unite, the largest trade union in Britain and the Irish Republic, welcomed the ruling, which it said will affect "many of the 2,500 people who are diagnosed with mesothelioma each year".
Unite's challenge was on behalf of the family of Charles O'Farrell, a retired member who died of mesothelioma in 2003.
Commenting on the Supreme Court's decision, Unite general secretary Len McCluskey said: "It is a disgrace that insurance companies went to such lengths to shirk their responsibilities."
Mr O'Farrell's daughter, Maureen Edwards, said: "This is the right decision. I am delighted for all those families who have been awaiting this result.
"My dad worked all his life and was hoping to enjoy retirement before mesothelioma took him away.
"There was never any question about who was to blame - all this long battle was about was insurers wanting to get out of paying."
Nick Starling, director of general insurance and health at the Association of British Insurers, said: "The ABI and our members are committed to paying compensation as quickly as possible to people with mesothelioma who have been exposed to asbestos in the workplace.
"We have always opposed the attempt to change the basis on which mesothelioma claims should be paid, as argued by those who brought this litigation.
"Today's ruling by the Supreme Court has confirmed what most in the industry have always understood - that the insurer on cover when the claimant was exposed to asbestos should pay the claim, rather than the insurer on cover when the mesothelioma develops.
'Financial security' "This case has been pursued by a small group of 'run-off' insurers acting independently and at odds with the views of the majority of the UK insurance industry. [A "run-off" company is an insurance firm which is no longer accepting new business.]
One of the four insurance companies which contested the proposal to date liability back to the time of exposure was Municipal Mutual Insurance Limited.

Analysis

The small group of insurers who brought this case argued that they were not liable to pay compensation under employers' liability insurance, if the illness occurred outside the relevant policy period. The Supreme Court Justices rejected that argument.
After a six-year legal battle the relatives involved in this litigation will get their compensation, but it is likely to affect thousands of other existing and future claims.
According to specialist lawyers, each payout could amount to anything from £65,000 to several million pounds, depending on individual circumstances.
Adrian Budgen of Irwin Mitchell Solicitors, which represented one of the relatives involved, said the judgment would apply not just to those who already have asbestos-related illness but to those who will be will be diagnosed next week, next month, or in years to come.
It issued a statement saying: "Whilst the ruling does not reflect MMI's favoured outcome, we welcome the clarity this judgment brings as it enables MMI to determine the extent of its liabilities and the available options for the future of MMI and its business.
"MMI participated in the joint action in order to determine the extent of the Company's insurance liabilities under policies it wrote in the period up to September 1992 (the date the Company ceased writing new insurance business).
"MMI has continued to compensate local authority employers for Mesothelioma claims, despite not being obliged to pay out claims until the outcome of the case was known. The underlying claimants (the victims of the disease) who have received compensation from MMI have been paid in full and have not been disadvantaged in any way by the fact that this case was brought."
A lawyer representing the lead claimant, Ruth Durham, said the judgement provided "clarity, consistency and comfort" for the families of thousands of mesothelioma victims.
Helen Ashton from Irwin Mitchell said: "This judgment means that the thousands of people who are yet to be given the devastating news that they have the deadly illness will at least know that their families can get access to justice and receive the financial security they need.
"But the sad fact is that many victims of mesothelioma who have been awaiting the outcome of this appeal may not have lived long enough to know if their families will now receive the compensation they deserve."
She said asbestos-related disease caused more than 5,000 deaths every year.
The number of people affected by mesothelioma was still rising because of the time it can take for this illness to develop and was expected to peak around 2015, she added.

mesothelioma insurance companies

 mesothelioma insurance companies

mesothelioma insurance companies

Mesothelioma Settlements

It's virtually impossible to predict how much money will be involved in the settlement of a mesothelioma claim without knowing specific details of the claim and the medical history of the plaintiff. But history has shown that an overwhelming majority of the cases never reach the courtroom. Cases usually end in a settlement.
Settlement amounts are often tied to the cost of medical expenses, lost wages, physical and mental distress and bills that accumulate from moving forward with an asbestos-related illness. Of course, they're also linked to the strength of a plaintiff's case, which brings into play the disease diagnosis, the health condition of the plaintiff (or loved one) and the degree of perceived liability on the part of the defendant(s).
For example:
  • A Buchanan County (Missouri) Circuit Court Judge approved a settlement in 2011 worth $10 million to Nancy Lopez, a Jackson County courthouse employee, who was exposed to the asbestos during a renovation project done by U.S. Engineering Company.
  • A Montana judge in 2011 approved a $43 million settlement in Libby, Montana. But because the settlement covered more than 1,300 miners and their families, individual settlements ranged from only $500 to $61,000.
  • The family of a New Jersey construction worker received a $2.1 million settlement after he died of mesothelioma, but a Navy veteran received settlements totally $461,000 after he developed asbestos-related lung cancer.
  • A boilermaker in New York received a $3.7 million settlement after developing lung cancer from asbestos exposure, while a building maintenance worker received a $2 million settlement after developing mesothelioma.
Exact settlement figures are usually considered private and claimants are often bound by a confidentially agreement, although from time to time settlement amounts to reach the public eye. Those amounts can range from a few thousand dollars to millions of dollars.
According to a recent Mealey's Litigation Report, the average mesothelioma trial award is an estimated $2.4 million. The average mesothelioma settlement is between $1 million and $1.4 million and typically is paid from multiple defendants. Some are considerably higher, others significantly lower. No two cases are alike.
$30,000,000,000 in trust funds available

mesothelioma insurance claims


 mesothelioma insurance claims
mesothelioma insurance claims
mesothelioma insurance claims
mesothelioma insurance claims

I. Summary
Following recent dicta from the Supreme Court, employers may be entitled to seek a full indemnity from employers liability insurance (“EL”) underwriters in respect of employers’ payments to employees with mesothelioma, whether those payments have been made in the past or may be made in the future, and regardless of the length of time the underwriter insured the employer. There are therefore, a number of urgent steps that employers should take:
Employers should as a matter of urgency:
  • check their EL policies to see if there are any policy terms which address rights and obligations based on the length of time the underwriter insured the employer;
  • if employers do not have polices to hand, they should contact their brokers, failing which their underwriters, to obtain copies;
  • if the underwriters are unknown, the insurers’ regulator and trade bodies have put processes in place to enable employers and employees to identify EL underwriters; and
  • consider the prospects for seeking a further or full indemnity, and consider the economics of joining with other employers to seek indemnities, as explained in section IV below.
II. How do employers currently stand?
Employers across a range of industries – in particular, those with assets which have required work on fire retardant materials in the last 50 years, such as in the construction, chemicals and manufacturing sectors – have faced and continue to face substantial liabilities from mesothelioma-related claims from current or former employees.
The latency period for mesothelioma, from exposure to asbestos to the onset of the disease, can be some 40 years or so.  Mesothelioma deaths continue to increase in Great Britain: from 153 in 1968 to 2,321 in 2009.  Some predictions are that annual deaths will increase to a peak of over 2,000 in about 2016 before declining.  The disease involves painful, debilitating and distressing symptoms, and usually proves fatal.  Damages awards in respect of mesothelioma (“Mesothelioma Damages”) can be substantial – often in six-figures.
In relation to employer’s liabilities, putting EL cover to one side for a moment, the current state of the law can be summarised as follows:
  • if an employee only had one employer, and that employer alone negligently exposed the employee to asbestos fibres with the outcome that there was a material increase in the risk that the employee would develop mesothelioma (“Mesothelioma Increase Risk”), then that employer will be wholly liable in respect of the resulting mesothelioma;
  • if an employee had more than one employer, but only one of those employers negligently caused Mesothelioma Increase Risk (the “Relevant Employer”), then that Relevant Employer will be wholly liable in respect of the resulting mesothelioma;
  • however, if an employee had more than one employer, and more than one Relevant Employer, then any and all of the Relevant Employers will be jointly and severally liable in respect of the resulting mesothelioma
  • the period or periods during which an employee was exposed to asbestos by all Relevant Employers is referred to below as the “Exposure Period
  • the period during which any one Relevant Employer caused Mesothelioma Increase Risk is referred to below as the “Liability Period”, which could be a small or large proportion of the Exposure Period.
In other words, it is possible for only one Relevant Employer to be liable for all of the Mesothelioma Damages: liability in respect of any Liability Period creates liability for 100% of the Mesothelioma Damages relating to 100% the Exposure Period.
The rule as to the joint and several liability for Mesothelioma Damages was developed in the cases of Fairchild and Barker and codified by the Compensation Act 2006, section 3 (the “Fairchild/Barker Rule”).
The position in relation to EL cover was considered in the recent case of BAI (Run Off) Limited (In Scheme of Arrangement) v Durham.  The Supreme Court ruled on two questions as to allocating liability to indemnify a Relevant Employer to the employer’s insurers on cover at the time of either:
  • the negligent exposure of the employee to asbestos; or
  • the onset of the employee’s mesothelioma
    • In the case of certain EL policies which were worded to indemnify the employer against liability in respect of injury or disease “sustained” or “contracted” during the period of cover, was the “trigger” point for cover either
      • the exposure to asbestos: or
      • the onset of the disease? (the “Trigger Issue”)
    • In relation to certain EL policies, does the Fairchild/Barker Rule apply when determining whether an employee “sustained” or “contracted” mesothelioma during a particular policy period? (the “Exposure Issue”).
In short, the Court ruled as follows:
The Trigger Issue
  • Mesothelioma is “sustained” or “contracted” at the moment the employee is exposed to asbestos.
  • The insurers on cover at the time of exposure, rather than the insurers on cover at the onset of the disease or subsequently, are liable to indemnify the employer.
The Exposure Issue
  • The purpose of the EL policies was to insure the employers against liability to their employees
  • Whether a disease can be said to be “sustained” or “contracted” during the EL policy period must be interpreted sufficiently flexibly to give effect to the Fairchild/Barker Rule.

III. The broader consequences of the judgment
As explained above, any one Liability Period can make a Relevant Employer liable in respect of 100% of the Mesothelioma Damages relating to 100% of the Exposure Period.
However, insurers of Relevant Employers during Liability Periods (“Relevant Insurers”) have taken the position that any one Relevant Insurer can only be liable pro rata for the period of time during which that Relevant Insurer insured the Relevant Employer during the Liability Period (the “Time on Risk Argument”).  For example:
  • Employer X employed Employee Y;
  • the Liability Period as between X and Y was 10 years
  • Relevant Insurer A insured X for 5 years of the Liability Period (ie half the time) - Relevant Insurer B insured X for the other 5 years
  • The Mesothelioma Damages are £100,000; X is liable for this amount to Y; and
  • Based on the Time on Risk Argument, A and B are liable for £50,000 each to X.
The Time on Risk Argument raises no issues for employers provided that all Relevant Insurers are able to pay.  However, during the lengthy time periods involved in mesothelioma onset and claims development, a number of EL insurers from the 1960s through to the 1990s have become insolvent or may now be at risk of becoming insolvent.  This has left, and may yet leave, Relevant Employers having to bear substantial and unforeseen levels of Mesothelioma Damages themselves (“Net Settlement”).  For example:
  • If, say Relevant Insurer B in the above example were insolvent, Relevant Insurer A would continue to accept liability for only £50,000 of the Mesothelioma Damages; and
  • X would have to pay the other £50,000 itself
We are aware that a number of Relevant Employers have reached substantial settlements for Mesothelioma Damages to which certain Relevant Insurers have contributed pro rata as per the Time on Risk Argument but, in respect of the balance beyond the pro rata, left the Relevant Employers having to make Net Settlements.
Employers who have paid, or who have yet to resolve, claims for Mesothelioma Damages, need to consider the merits of challenging the Time on Risk Argument.  The essence of the challenge is that, in respect of Mesothelioma Damages:
  • the principle or substance of the Fairchild/Barker Rule should apply to Relevant Insurers commensurately with the application of such rule to those Relevant Employers whom the Relevant Insurers insured; or, in other words
  • a Relevant Employer can and must be fully indemnified by any or all of its Relevant Insurers (the “Fairchild Insurance Argument”)
IV. What should employers do next?
Resolving the Time on Risk and Fairchild Insurance Arguments raise questions of insurance policy terms and construction.  The Summary above deals with what employers should do.  In particular, a Relevant Employer who has made a Net Settlement should assess the prospects for seeking a further or full indemnity from:
  • its Relevant Insurer; and/or
  • other Relevant Employers and their Relevant Insurers.
That the Fairchild Insurance Argument can be successfully deployed can be readily inferred from the leading judgment of Lord Mance in Durham v BAI.  In respect of the policies in issue in Durham, Lord Mance stated (emphasis added):
The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured …
Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers’ liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period.”
A number of Relevant Employers may take the view that while they may have the legal issues on their side, it is not cost-effective to pursue the Fairchild Insurance Argument.  Given the number of Mesothelioma Damages claims and awards, and the number and range of businesses affected by them, Relevant Employers should consider the principles of economies of scale (or perhaps ‘safety in numbers’), and the deployment of the processes for pursuing multi-claimant litigation allowed in the Civil Procedure Rules.

Mesothelioma and asbestos

Mesothelioma and asbestos

Mesothelioma is a rare and aggressive form of cancer which kills around 2,400 people in the UK each year. It is usually caused by exposure to asbestos, which often occurs in the workplace. Insurers pay out £200 million a year to mesothelioma sufferers.
Asbestos is a material that was commonly used in the manufacturing and construction industries between the 1950s and the 1980s. People who worked in these industries during this time were regularly exposed to asbestos, inhaling asbestos dust and fibres over a prolonged period of time. It later emerged that the inhalation of asbestos was the main cause of mesothelioma.
Mesothelioma is a cancer which affects the lungs or the lining of the stomach. It is almost always fatal, with most sufferers dying within two years of diagnosis. There is currently no known cure for mesothelioma – treatment usually focuses on relieving a sufferer’s symptoms and improving their quality of life.
Mesothelioma sufferers can make compensation claims against the employer for whom they were working at the time they were exposed to asbestos. Mesothelioma has a long latency period – that is the time between a person’s initial exposure to asbestos and the development of the disease – usually between 30 and 40 years. This can mean that the employer in question no longer exists. In such cases, the mesothelioma sufferer can submit a claim to their former employer's employers' liability insurer.  
The insurance industry is committed to helping people with mesothelioma and their families to get the support they need. The ABI is campaigning to reform the compensation process for mesothelioma sufferers. We are working with the Government and insurers to make the compensation process quicker and easier for mesothelioma sufferers through measures including:

Supporting medical research

Insurers have donated £3 million over the last three years to the British Lung Foundation (BLF)’s research into a cure for mesothelioma.

Raising awareness of asbestos exposure at work and in the home

Insurers have funded the BLF’s ‘Take five and stay alive’ campaign which raises awareness of dangers of asbestos exposure among those most at risk for example, DIY enthusiasts and tradespeople such as plumbers and electricians.

Reforming the legal system

The legal process for mesothelioma claims can be complex, lengthy and expensive. The insurance industry is campaigning for a new process that will allow mesothelioma sufferers to settle their cases more quickly.

Tracing insurers and former employers

Mesothelioma sufferers may find it difficult to track down their former employer’s employers' liability insurer if the company has gone out of business. In April 2011 the insurance industry set up the Employers’ Liability Tracing Office (ELTO) to help people find insurers if their former employer is no longer in business. The ELTO has a database of millions of insurance policies from all past and present employers' liability insurers. The service has made tracing policies considerably easier for mesothelioma sufferers.
Over the next year the ABI and the ELTO will be introducing further improvements.These will include a committee to analyse claimants' evidence of the existence of their former employer's employers' liability policy in the absence of the policy itself.

Mesothelioma Support Scheme

In 2012 the ABI and the Government launched the Mesothelioma Support Scheme to make payments to around 3,000 mesothelioma sufferers who cannot find an employer or insurer to claim from. Mesothelioma sufferers diagnosed after 25 July 2012 will be eligible to make a claim under the scheme. The first payments will be made in July 2014. A levy imposed on employers' liability insurers will fund the scheme at an estimated cost of £35 million a year. For more information see the Mesothelioma Support Scheme website.

Next steps

For information on the Mesothelioma Bill announced on 8 May 2013 see the Queen's Speech.


 

Mesothelioma and the Insurance Trigger

Mesothelioma and the Insurance Trigger
Mesothelioma and the Insurance Trigger
Mesothelioma and the Insurance Trigger


Durham v BAI [2012]1
Supreme Court, 28 March 2012
Background
This litigation concerned claims brought against insured employers by sufferers of mesothelioma, an incurable form of lung cancer caused by prolonged exposure to asbestos. A notable characteristic of the disease is that it can take many decades for it to develop after the original exposure to asbestos, and in some cases it might only be diagnosed by way of postmortem. In the past, the medical evidence suggested that malignant changes associated with the disease typically occurred about 10 years before the onset of symptoms, although more recently this has been revised by many experts to five years. At any rate, once the disease is identified the prognosis is poor. Most sufferers die within about 18 months of diagnosis. The condition is a major issue for the employers' liability insurance market, as current projections forecast a peak in the number of mesothelioma sufferers in the next 20 years.
Traditionally, EL insurers in the UK have as a matter of practice adopted the "exposure" principle in determining cover for mesothelioma claims. In other words, the responsive EL policy will be that in place at the time when the claimant was exposed to asbestos, rather than that prevailing at the time of onset of the symptoms, or diagnosis of the condition. Where, as is common, exposure spanned a number of policy years (perhaps an entire working life) liability would be shared between the various insurance interests pro rata to their time on risk.
That practice was thrown into doubt by the decision of the Court of Appeal in Bolton Metropolitan Borough Council v Municipal Mutual Insurance [2006]2. Importantly, the Bolton case was concerned with public liability, not employers' liability insurance. Under the terms of the relevant policy in Bolton, the insurer agreed to indemnify the insured in the event that it became liable for injury or illness which "occurs during the currency of the policy". The court held that the injury to mesothelioma sufferers occurred not when they were exposed to asbestos but much later, at the point when they became fatally ill, which typically was thought at the time to be about 10 years before exhibiting outward symptoms
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