Mesothelioma: Employers' Liability Trigger Litigation

The judgment of the Court of Appeal in the combined appeals more commonly known as the Employers' Liability Trigger Litigation was handed down today (8 October) by the Court of Appeal. The Court, in a fragmented judgment, allows some of the appeals from the order of Burton J (21 November 2008). A number of the appellants were, however, unsuccessful. The reasoning of the three Lord Justices all differ. In his leading judgment, Lord Justice Rix indicates that he considers himself bound by the Court of Appeal's decision in Bolton v MMI (2006) and that, were he not bound by Bolton he would have found to the contrary. The position is therefore wholly unsatisfactory and it appears inevitable that this matter will proceed to the Supreme Court.

Lord Justice Rix

Lord Justice Rix gave the lead judgment providing all of the background information, the overview of the medical evidence and the legal history of "causation" and "injury" in tort.

He indicates that he considers that the commercial purpose of EL Insurance has been to provide employers with insurance to meet liabilities which their activities as employers in each period of insurance engendered. He further rules that as "industrial disease became a more important element in such liability, the general understanding of such disease was that, even where there was a latency period or the disease was not diagnosed until much later, the disease was contracted and the relevant injury was, at any rate in its origins, suffered in the period of activity from which the disease arose". Rix goes on to say "the prevalence of causation wording is, in my judgment, symptomatic of the commercial purpose of EL Insurance".

With that said, the balance of Rix's judgment does not appear to be entirely consistent with his thinking in relation to that commercial purpose.

Rix considers the trigger "disease contracted". Rix indicates that on the one hand the meaning of "injury" in the Bolton v MMI sense would suggest the onset of disease not its origins being the trigger. On the other hand, Rix considers that the commercial purpose of EL Insurance pulls in the other direction.

Weighing the two up, Rix concedes that the The judgment of the Court of Appeal in the combined appeals more commonly known as the Employers' Liability Trigger Litigation was handed down today (8 October) by the Court of Appeal. The Court, in a fragmented judgment, allows some of the appeals from the order of Burton J (21 November 2008). A number...