In the Durham v BAI & Others (2008) test case the Court endorsed the "inhalation/exposure" trigger which had traditionally been applied by the employer's liability (EL) insurance market to mesothelioma claims. The Court held that for the purpose of recovery under EL policies covering on an "injury sustained" or "disease contracted" basis, "injury is sustained or contracted when it is caused" and the policies would respond on the "inhalation/exposure" basis.
This EL Trigger Litigation arose from certain insurers' declining to pay EL mesothelioma claims on the traditional exposure basis, following the Court of Appeal's 2006 public liability (PL) decision in Bolton MBC v Municipal Mutual, where "injury" under this PL policy was held to have occurred (and coverage thereby triggered) not when exposure to asbestos fibres occurred, but 40 or so years afterwards, when a victim's tumour started to develop.
The Court held it was not bound by Bolton since that case concerned a Public Liability policy. Much weight has been given in the judgment to Parliament's and the Higher Courts' special approach in mesothelioma cases, to causation and the liability of successive employers/insurers. The matter is not finally resolved however, permission to appeal has been granted to the insurers. Watch this space.
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