Widow of Asbestos Victim suffers due to outstanding ruling on compensation

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Widow of asbestos victim could lose her home while waiting for a ruling on compensation with hundreds of others

Margaret Burgess, 71 from High Wycombe in Buckinghamshire, faces having to sell up her home of 26 years after a bid to secure her compensation after her husband died from mesothelioma has been set back while a technical dispute over the wording of insurance policies rolls on to the Supreme Court.

Robert Burgess carried out general building and maintenance work for H Tyson Chambers Limited in Slough from 1953 to 1958. His job included hand-sawing corrugated asbestos cement roofing material and sanding asbestos soffit boards, but he was never provided with any protective equipment or warned of the dangers of asbestos.

When Robert began to experience breathing difficulties, he was diagnosed with mesothelioma in September 2007. When he learned that his work at H Tyson Chambers Limited was responsible for his contracting the disease, he instructed solicitors. Sadly, Robert Burgess died on 2nd January 2008 aged 69 and the matter was subsequently pursued for the benefit of his widow.

Supreme court ruling on asbestos claimsThe Insurers for H Tyson Chambers have agreed the company was at fault for exposing Mr Burgess to asbestos, they have even agreed the value of the claim at £36,000 plus repayment of DWP benefits. However they will not pay, because of the dispute on the policy wording, until the Supreme Court orders that they must.

The insurers are holding out for the final decision in the Employers’ Liability Trigger Litigation case, which revolves around the issue of what triggers an insurer’s liability to pay out compensation to victims of asbestos-related diseases and their families.

Emma Costin, Partner and Head of Industrial disease at Simpson Millar LLP, is representing Mrs Burgess. She explains:

"The central issue at stake is what triggers an insurer’s liability to pay out compensation under the terms of the policy; is it the actual negligent or wrongful act of the employer, or is it the beginning of the disease caused by the employer’s negligent or wrongful action?"

The distinction is crucial in cases of asbestos exposure because typically, exposure to asbestos has taken place long before the disease can be detected – as in the case of Mr Burgess. In the 50 or 60 years since the exposure, the employer may well have ceased trading.

Historically, victims could recover compensation from whichever company was the employer’s liability insurer at the time of exposure but the Employers’ Liability Trigger Litigation has put a question mark over this.

A group of insurers challenged this in the case of policies where the wording provided that the liability to pay would only be triggered when the harm occurred. The claims were initially decided in favour of the victims in 2008 but the insurers immediately appealed and ever since then, insurers have refused to pay on disputed policies such as that covering H Tyson Chambers Limited.

The latest Court of Appeal decision was handed down earlier this month on 8th October 2010 but as Emma explains, it offers no resolution for people like Mrs Burgess:

"The majority of the Court of Appeal Judges ruled in favour of the victims, but the decision has been appealed to the Supreme Court. In the meantime, we expect that insurers will continue to hold back on paying out claims."

Emma says that human side of this complex litigation has been lost:

"The human aspect of what has happened and is still ongoing is impossible to ignore. Victims and their families now face years of further waiting and uncertainty. "

"The process of bringing a claim for a mesothelioma victim is often a complex one. He or she will come to realise that what is at stake is not only money to provide for the security of their loved ones, but also and very importantly it is a calling to account for a wrong which is among the worst that an individual can suffer – that which has the result of shortening their life, of causing a painful death which their loved ones must bear witness to. "

"It is a disgrace that this issue has taken so long to resolve, and a very powerful argument for the swift introduction of a state funded Employers Liability tracing bureau and fund of last resort."

Deana Taylor, daughter of Mr & Mrs Burgess, says that the legal wrangling over technicalities has left her mother bereft of the support she so badly needs:

"My mum still lives in the family home but without my dad around to maintain the house and keep things in order, parts of it are starting to fall into disrepair. She has been left on a widow’s pension which is topped up to £130 per week but after bills there’s not much left for her to live on. "

"My mum won’t have the money to pay someone to carry out maintenance works so she may have to sell up, which will be a real wrench for her."

Deana says that the family just want acknowledgment of the damage H Tyson Chambers has caused to them:

"My dad should have been better informed and looked after when he worked there. His father recently died aged 94 and his mother is still going at 91; we believe he has been cheated out of 20 years."

Deana says that her parents have a parrot that still imitates her father’s voice today, so the family are constantly reminded of him.

"We miss him everyday and just want recognition for our loss."

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