This blog is written by John-Paul Swoboda and Cressida Mawdesley-Thomas. John-Paul Swoboda successfully acted for the Claimant, instructed by Shaheen Mosquera of Fieldfisher, in Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB).
Keegan is the first case to go to trial, so far as we are aware, to consider the application of The Third Parties (Rights against Insurers) Act 2010 (‘the 2010 Act’) in the context of claims for mesothelioma. Regular readers of this blog will no doubt remember the case of Brooks (link to blog here) which considered the issue through the prism of a strike out application.
It is, we think, a significant decision:
- It makes any argument that the cause of action is complete in mesothelioma cases years before the onset of symptoms hard, if not untenable.
- Arguments against suing an insurer(s) directly in mesothelioma claims (where the employer is no longer a live entity) on the basis that the cause of action was complete before 1 August 2016 are therefore hard, if not untenable.
Background
Claimant
Mr Keegan was exposed to asbestos whilst working for his employer Jas. C. Flaxman & Sons Ltd at various Marks & Spencer stores between 1972 and at least 1984. He began to suffer from symptoms of mesothelioma in about January 2021. His claim was supported by witness statements and also medical evidence. To avoid the delay of restoring Jas. C. Flaxman & Sons Ltd to the register Mr Keegan brought his claim directly against their insurers (IICL and Zurich), relying on the 2010 Act. This was particularly important as he was paying for expensive dual agent immunotherapy from his own funds.
First Defendant
The First Defendant, an insolvent insurer, did not respond to the claim and took no part in the proceedings. That is not to say there is no potential paymaster however, as the FSCS agreed in principle to indemnify but took issue with the fact that an action had been brought directly against the insolvent insurer. That issue of whether the FSCS is liable for the judgement against the insolvent insurer was not resolved during the current action.
Second Defendant
The Second Defendant expressly denied that the 2010 Act applied or operated to confer any cause of action against the insurers. The Second Defendant contended that any liability of the insured to the Claimant was incurred prior to the commencement of the 2010 Act and accordingly it did not apply.
Settlement was reached with the Second Defendant shortly before trial for £650,000 plus an indemnity for future treatment costs. This left a shortfall of about £200,000 on the total claimed (which was £854,076.23 per the schedule of loss) which is the sum which the Claimant went to trial on in the action against the First Defendant.
The 2010 Act
The 2010 act operates to transfer to third parties’ the rights against the insurer that the ‘relevant person’ has when that relevant person incurs an insured “liability”. This is set out in section 1 of the 2010 Act which provides (emphasis added):
(1) This section applies if—
(a) a relevant person incurs a liability against which that person is insured under a contract of insurance, or
(b) a person who is subject to such a liability becomes a relevant person.
(2) The rights of the relevant person under the contract against the insurer in respect of the liability are transferred to and vest in the person to whom the liability is or was incurred (the “third party”).
(3) The third party may bring proceedings to enforce the rights against the insurer without having established the relevant person’s liability; but the third party may not enforce those rights without having established that liability.
What this means in the context of a Claimant suing an insurer directly in a PI action is that the Claimant is vested with the right to bring a claim directly against an insurer who provided relevant EL / PL cover so long as the employer/occupier is a relevant person (i.e., either in some kind of insolvency situation or dissolved). The rights are enforceable once liability is established and liability is established under the 2010 Act by a declaration of the insured’s liability. It should be noted that this marks an important departure from the 1930 Act, which the 2010 Act repealed, which required liability to be established against the insolvent company/person before the claim could be brought against the insurer and before details of applicable insurance could be obtained.
The Issue
The central issue was whether the former employer had “incurred a liability” (that phrase being used in s1(1) of the 2010 Act) before 1 August 2016, the date that the 2010 Act came into force, such that the Claimant was entitled to bring the claim against the insurers directly.
That task was made easier as Redman v Zurich Insurance Plc [2017] EWHC 1919 (QB) had already decided what the phrase “incurs a liability” means in section 1(1) the 2010 Act:
“Liability is incurred when the cause of action is complete and not when the claimant’s rights against the wrongdoer are thereafter crystallised whether by judgment or otherwise.” [23]
In Keegan, there was no issue that the negligence occurred long before 1 August 2016 (the tortious exposure was between 1972 and 1984). The issue was when was damage, sufficient to complete the cause of action, sustained.
Discussion of the case
The Court considered the relevant case law on actionable damage fully and thoroughly the cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758; Pirelli General Cable Works Ltd v Oscar Faber & Partners (A firm) [1983] 2 AC 1; Hicks v Chief Constable of South Yorkshire Police [1992] P.I.Q.R. p433; Rothwell v Chemical & Insulating Co Ltd [2008] AC 2981; Dryden v Johnson Matthey PLC [2018] UKSC 18 all being considered. The Court also considered the insurance cases, and in particular The Trigger litigation and whether that shed light on when actionable damage arose in the context of mesothelioma.
This is accordingly a fully considered decision albeit one-sided as the First Defendant was unrepresented and the Second Defendant did not, and could not, make any submissions to prejudice the position of Zurich in light of the agreement with the Claimant. Accordingly, Yip J’s finding that it is only when the mesothelioma “manifests itself by radiological changes and/or symptoms that actionable damage occurs. Until then, the claimant is not appreciably worse off either physically or economically.” is a decision to be treated with the utmost respect. Following this decision, it is our view that the mere fact that an insurer has been sued directly is no reason for judgment not to be entered at the show cause stage.
Further Yip J’s indication that where symptoms onset after 1 August 2016 it is for the Defendant to prove that actionable damage in fact occurred is important. It is no longer tenable, it is suggested, for a Defendant to baldly assert at a show cause that the cause of action was complete before 1 August 2016 where symptoms onset much later: such an assertion would fail to meet the burden (whether evidential or legal) which Yip J indicated applies.
Finally it would be churlish to quibble with Yip J over whether actionable damage occurs at the point of asymptomatic pleural effusion or the onset of symptoms as it will be irrelevant to the question of whether the cause of action was complete before or after 1 August 2016: as Yip J noted, “… On either basis, I am satisfied that there was no actionable damage until long after the commencement date of the 2010 Act.” That, it is suggested, will be the same in any mesothelioma diagnosed in the past few years.
ASBESTOS LAW 