Court vs insurers - who decides?

Older man looking to camera

This article first appeared in the Winter 2014 Asbestos Action newsletter

Summer and early autumn has been a very busy time for the Digby Brown asbestos exposure team with many hundreds of thousands of pounds in damages recovered for Asbestos Action members and their families. Along the way, several notable cases were resolved.

The majority of civil claims only succeed where an employer has failed in their duty to act reasonably to protect workers against the known dangers of asbestos exposure. An example of just how far back some employers’ ‘guilty knowledge’ extends was seen in a mesothelioma case we won in September for an Asbestos Action member, a former plumber, whose negligent exposure to asbestos at work occurred as long ago as 1956-61.

For years the insurance industry has resisted attempts by victims to secure fair and just compensation. If the insurers are to be believed, victims should nonetheless place their faith and trust in them rather than appoint specialist lawyers to fight against them in our courts. Our experience suggests the opposite.

June saw an important Court of Session decision in favour of a widow, Margaret Gallagher, and her family. Mr Gallagher died of mesothelioma following negligent exposure to asbestos at work. The case is of note because the level of damages awarded by the court to the family greatly exceeded the amount of compensation the insurers were prepared to offer.

We are routinely told by insurers that, ‘as a matter of policy’ the level of damages offered in such cases should not exceed a certain level. This case confirms it is for the court to assess the true level of damages a family should receive, rather than the insurance industry.

We face similar arguments in pleural plaques cases. For some time insurers have argued that those diagnosed with pleural plaques as a result of negligent asbestos exposure should be bound to accept damages based on a predetermined framework. Northern Ireland has similar legislation to Scotland, allowing those diagnosed with only pleural plaques to claim damages (unlike England, where no such right to claim exists).

A recent Supreme Court Northern Irish case, called McCauley, awarded damages of £10,000 for pleural plaques, a sum in excess of the level of compensation insurers are prepared to offer in terms of the framework in Scotland. This month, in a case we advanced for an Asbestos Action client, on the day before the start of the hearing of evidence, perhaps mindful of the McCauley case, the insurers conceded, and increased their settlement offer to a level beyond the figure they previously stated they would not exceed as a matter of policy. This again reinforces our view that it is for the courts, not insurers, to determine a fair and just measure of damages.

It is often argued by insurers in mesothelioma cases that litigation is not in the victim’s best interests because it causes unnecessary delay, time which mesothelioma suffers do not have.

However, that is not our experience when raising court proceedings for Asbestos Action members or their families. A recent example is a case we pursued for an electrician whose exposure we argued came from an asbestos roof within the workplace. We were instructed shortly after Asbestos Actionwere first consulted in May this year. After urgent investigations, we raised proceedings, relying upon the court’s accelerated procedure.

A date for the full hearing of evidence was fixed for 4 November, but despite the insurers continuing to deny responsibility throughout, settlement terms were agreed in full on 24 October, barely five months after instructions were first received.

This case shows that our court system, if used properly by specialist lawyers, can be dynamic and adaptable, to best serve the interests of justice.

Fraser Simpson

Fraser Simpson
Partner and Head of Industrial Disease Department