These six consolidated actions (Durham v BAI (Run Off) Ltd and other cases) concerned the trigger under various employers’ liability (EL) policies. The issue in question upon which the outcome of thousands of claims depends was whether the EL insurance policy was “triggered” at the date the employee was exposed to asbestos or at the date when the victim’s mesothelioma manifested many years later. Burton J held that the phrase “injury or disease sustained or contracted” in the EL policies was to be construed as synonymous with “injury caused”. This was consistent with the commercial purpose of the insurance, public policy and the practice of EL insurers prior to the decision of the Court of Appeal in Bolton MBC v Municipal Mutual Insurance Ltd which concerned liability for mesothelioma under public liability (PL) insurance. Acordingly the trigger was the date of exposure to asbestos and not the date the disease manifested itself.
Had the judge reached the opposite conclusion, many claimants would have been unable to recover compensation because their employers and/or their insurers had gone out of business between the date of exposure to asbestos and the development of the cancer. A different approach applies to PL policies which are almost all written on an occurring basis, covering injury and illness occurring during the policy period. On the contrary, almost all EL policies are written on a caused basis, covering injury and illness caused during the policy period, and the judge was able to distinguish Bolton MBC v Municipal Mutual Insurance Ltd on this ground.