The defendant insurance company was found liable to contribute under insurance it had written, 22% of the compensation it had paid out in a mesothelioma claim brought in Guernsey by a Mr le Carre. The company was successor to a company which had employed Mr le Carre for many years, exposing him to asbestos. Other insurance companies had contributed according to the extent of time covered. The court considered the applicability of the special rule as to evidence introduced in the Fairchild case as modfied by the 2006 Act. However that Act did not apply in Guernsey, and the court was left with the position at common law (agreed to be the same in the UK and in Guernsey) as found in Barker.
Held: The court accepted Zurich’s case regarding the compensation, but not the defence costs, paid in respect of Mr Carre. It was liable to pay andpound;71,729.84 in full discharge of its policy liabilities, being its relevant proportion of such compensation plus 100% of the defence costs.
‘the basis of Common Law liability prevails, in accordance with the principles enunciated in Barker, with the result that the liability of any defendant for mesothelioma is assessed by reference to the responsibility he bears for exposure, as compared with the responsibility for other exposures to asbestos and the risk of contracting mesothelioma. The Insured here accepts, ex hypothesi, that exposure over any period of one year is quite sufficient to give rise to a material increase in the risk of contracting mesothelioma and, given the agreed facts as to the uniformity and consistency of the intensity of exposure over the whole of the period of the Insured’s employment, the only measure of assessing responsibility for exposure is by reference to periods of time during which such exposure occurred. It cannot matter for this purpose, when assessing the Insured’s liability for any one year of exposure, conforming to the annual period of the insurance cover granted by the Insurer, that there is only one employer here involved. ‘
Judges:
Cooke J
Citations:
[2012] EWHC 69 (Comm)
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Phillips (Widow and Executrix of the Estate of Arthur Phillips, Deceased) v Syndicate 992 Gunner and others QBD 14-May-2003
Mr Phillips had been employed by a single employer between 1955 and 1957 and then between 1959 and 1970, during which periods he was exposed to asbestos dust. Out of the 13 years of this exposure, the insurers were on risk for 9 years between 1959 . .
Cited by:
Appeal from – International Energy Group Ltd v Zurich Insurance Plc UK Branch CA 6-Feb-2013
. .
At First Instance – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Insurance
Updated: 02 June 2022; Ref: scu.450480