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Uncertainty In The Law: When Actionable Damage Arises In Mesothelioma Cases - Nicholas Dobbs, Temple Garden Chambers

13/06/22. In Brooks v Zurich Insurance, the Claimant had worked as a maintenance engineer at a paper mill in Enfield. His work brought him into contact with asbestos and, around 30 years later in March 2020, he began to suffer from the first symptoms of mesothelioma. He was formally diagnosed in April 2021. When examined in October 2021, his life expectancy was in the range of 6 to 18 months. His wife suffered from dementia and he wished to progress the claim as quickly as possible so that there would be funds available for her on his death.

Liability for the Claimant’s industrial disease was not disputed. He brought his claim directly against the insurers pursuant to the Third Parties (Rights Against Insurers) Act 2010 (the ‘2010 Act’) to avoid having to take the preliminary steps of restoring the relevant companies to the register (which can take some months), obtaining a judgment against those companies and then applying to enforce the judgment in separate proceedings under the Third Parties (Rights Against Insurers) Act 1930 (the ‘1930 Act’).

The 2010 Act came into force on 1 August 2016 and does not have retrospective effect. A relevant person incurs liability under section 1 of that Act when the cause of action is complete, not when the Claimant has established the right to compensation against the wrongdoer, whether by a judgment or otherwise. The question for the court in Brooks v Zurich Insurance was whether the claimant’s cause of action against his employers was complete before 1 August 2016, i.e. whether he suffered actionable damage prior to that date.

The Defendants argued that the claim under the 2010 Act was bound to fail because the Claimant’s mesothelioma...

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