‘Pot Luck’ Ruling For Asbestos Victims At Court Of Appeal

Asbestos Decision 'Does Not Consider The Man On The Street'

08.10.2010


Lawyer says split judgment does not consider the man on the street and leaves victims and their families in ‘limbo’ as ‘justice for some is not justice at all’

A leading lawyer who represents asbestos victims and their families has said they face more confusion and uncertainty after a Court of Appeal ruling found that only some sufferers could recover damages for the fatal injuries they sustained at work decades ago.

The three judges were unable to agree on their position regarding an earlier High Court ruling that employers’ insurers on risk at the time of exposure were liable to pay out on claims for mesothelioma caused by exposure to lethal asbestos in the workplace. Instead, they found that in some cases the responsibility lay with the employer’s insurer at the onset of symptoms, which in some cases is 50 or 60 years later.

Expert lawyer Helen Ashton from Irwin Mitchell who represented one of the lead claimants in the case said that, though she was delighted the judgment had found in favour of her client, for many people in a similar position this long-awaited, complex judgment would cause more upset and uncertainty.

She says that it is now a matter of pot luck as to which victims will be compensated and will even leave business and insurance companies unsure of where they stand. “This may yet impact on the taxpayer”, she added, clarifying that all mesothelioma victims exposed at work who cannot bring a claim are entitled to a one off payment from the government.

Ms Ashton confirmed too that the news had received a mixed response from her client Ruth Durham, who had continued the legal battle in memory of her father Leslie Screach, the first person in this litigation to bring a claim.

Mrs Durham said that though her father had passed away from the fatal lung disease in 2003, after being exposed to the deadly asbestos fibres between 1963 and 1968 while working as a paint sprayer in west London, she had wanted to see justice done for him and other mesothelioma sufferers now and in years to come.

Miss Ashton said: “Without a uniform judgment it remains unclear which victims are entitled to access the justice they deserve, and it really is pot luck. For many, it will mean delays, more legal uncertainty and more confusion, as the very wording of their employer’s insurance policies would need to be reviewed to see whether they can make a claim or not.

“And, most tragically, it has added another layer onto what is already a complex claim, meaning that many victims of mesothelioma who have been awaiting the outcome of this appeal decision may not live long enough to know if their families will receive the compensation they need to provide financial security when they are gone.”

Ruth Durham said: “Though I am relieved to hear of today's court decision which will see justice done for my father and some other mesothelioma sufferers, I think it is very sad that there is now a divide, with some victims and their families being compensated, and some not. 

“I had hoped to be able to see this through and have a good outcome for all those who, like my dad, suffered so terribly because of someone else’s negligence.

“We had been very close, and really were good friends. 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 the terrible news.

“I miss him every day and no sum of money will ever bring him back or make up for what he went through."

Miss Ashton added that the ruling also had important implications for employers and local councils, saying: “This outcome not only impacts on the people who are dying from this deadly disease, but also raises concerns for some employers still in business, and local councils who may find there is a black hole in their insurance cover.”