Court considers transitional rules for the Third Parties (Rights against Insurers) Act 2010

The claimant is the widow and adminstratix of an employee who in 2013 died from lung cancer allegedly caused by his exposure to asbestos up to 1982. The employer was the subject of a voluntary winding up in 2014. The claimant wished to rely on the Third Parties (Rights against Insurers) Act 2010, rather than the 1930 Act, and so circumvent the more stringent procedural requirements of the 1930 Act.

Schedule 3 of the 2010 Act provides that the 1930 Act continues to apply where the insured incurs a liability (against which it is insured) and the insured became "a relevant person" before 1st August 2016. There was no dispute that the insured employer became "a relevant person" when it was wound up in 2014. The claimant sought to argue that the insured had not incurred a liability before 1st August 2016. However, that argument was subsequently abandoned in light of prior caselaw which has established that "Liability is incurred when the cause of action is complete and not when the claimant's rights against the wrongdoer are thereafter crystallised whether by judgment or otherwise".

An argument was then raised that both the 1930 and 2010 Acts could run in parallel. Unsurprisingly, that argument was rejected by Turner J on various grounds, including the point that there are specific transitional provisions in the 2010 Act. The claimant had sought to convince the court that her argument would avoid the need to identify the date on which damage was caused, which can be a challenging exercise in the context of industrial claims. The judge responded that that was no reason to "ride roughshod over the clear wording of the 2010 Act…In any event, the problems commonly found in industrial disease cases do not arise in the vast majority of more straightforward claims and, in most cases, there is likely to be no difficulty in establishing when liability accrued".