The Hug of Death – expanding the scope of ACC cover for mesothelioma beyond a work-place injury

The dreadful and always fatal disease of mesothelioma, directly linked with exposure to asbestos, has given rise to much litigation in the common law world. Three years after her death due to mesothelioma, Deanna Trevarthen has recently been the subject of the decision in Calver v Accident Compensation Corporation [2019] NZHC 1581, in which Mallon J determined that Ms Trevarthen's estate qualified for ACC compensation.

Ms Trevarthen contracted the disease through contact with the work clothes of her father, an electrician who had been exposed to asbestos, and she died at the age of 45. This story has sparked much media attention and leads us to examine New Zealand's current legal position in comparison with other jurisdictions.

Proving a causal link between exposure and the disease

The legal difficulty posed by the disease is that it remains all but impossible to identify the exact exposures that have given rise to the disease. The typical process begins with exposure to asbestos, leading to asbestos strands becoming lodged in the lungs. Anything up to 40 years later the lungs become damaged. It may take a further two years for symptoms to manifest. There is rarely more than 15 months between diagnosis and death.

Those legal systems that - unlike New Zealand - offer compensation only on proof of fault, have faced intractable problems with causation, because it is impossible for the victim to prove a causal link between any one exposure and the onset of the disease. If, therefore, the victim has been exposed to asbestos by a sequence of employers, none of them can be shown by ordinary legal standards to have caused the disease.

England and Wales

In England the problem was addressed by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. The solution given in Fairchild was to abandon causation and to treat every exposure as giving rise to liability. Parliament subsequently enacted the Compensation Act 2006; under which each employer faces 100% of the liability for any one exposure, irrespective of the duration of exposure.

A series of complex cases followed on how liability insurance should be applied to that scenario. Durham v BAI (Run off) Ltd [2012] UKSC 14 concluded that where mesothelioma did develop, the relevant injury was the exposure and not the lung damage itself. This captures any insurance policy in force on the date of exposure, rather than when the lung damage manifests. In Zurich Insurance plc UK...