The wait is nearly over for sufferers from asbestos-related illnesses and they should start receiving compensation this month [May]. But the tragedy serves to illustrate the point that there is a need for a formal employers' insurers' liability bureau – along the lines of the Motor Insurers' Bureau (MIB) – to act as an insurer of last resort. This is the long-held view of the Association of Personal Injury Lawyers (Apil).
According to Apil president Frances McCarthy, what the group is looking for is the equivalent of the MIB. “Motor insurance is compulsory, and if you're hit by a driver who isn't insured then it will pick up the tab,” she says. “What we're saying is that employers' liability insurance is compulsory, so let's have an umbrella organisation that'll pick up the tab.”
The story of Iron Trades provides a cautionary lesson. Earlier in the year, creditors of Chester Street Insurance Holdings (formerly Iron Trades), the insurance company handling the claims, accepted a deal to prevent the company going into liquidation.
Lawyers are fuming that their clients will be left without money. Chester Street called in the liquidators in February, claiming it would be unable to meet the growing number of claims from asbestos sufferers suing their employers. The uncertainty affects workers whose employers were insured by Iron Trades, which stopped taking new employers' liability business in 1990 and hived off the business to Chester Street.
The firm has drawn up a scheme to be put before creditors in which the insurer would pay part of a claim and the rest, in certain cases, would be topped up from an industry protection fund. But lawyers say that protection applies only to claims dating from 1972, and most cases came about before this date.
McCarthy says: “If Iron Trades can do this, then what's to stop other insurers looking at it and saying, 'We've made a mistake, let's slide out of it'.”
McCarthy is also worried about recent case law weakening the position of those suffering from asbestosis and their families. In February this year, Judith Fairchild, a widow whose husband Arthur died from mesothelioma, a cancer which can be caused by a single fibre, lost her claim for compensation. Her husband had been exposed to asbestos on two occasions, but both employers denied liability.
The judge, Justice Curtis, concluded that no court “could find on the facts of this case”. The ruling leaves uncertainty over future mesothelioma actions.
According to McCarthy, a second case last year established that where there was more than one employer, liability was divvied up according to the time spent with each one. “We weren't happy about that because before you only had to establish one main employer and you'd get your compensation from them,” she says. “But at least it had a bit of logic to it.”
But the Fairchild case has made the situation a whole lot worse. “It's just a bad decision, ignoring years and years of law,” says McCarthy. The decision is currently being appealed.