Victory for common sense as Supreme Court tells insurers to pay up in mesothelioma claims
Insurance companies, Excess Insurance, MMI, Builders Accident and Independent Insurance Company tried to persuade the court that because of the specific words they had chosen to use in their policies years ago, they did not have to pay claims for compensation for mesothelioma sufferers.
If the Supreme Court had agreed with the insurance companies it would have left some mesothelioma sufferers and their families without the compensation they deserve and created a lottery where some mesothelioma sufferers received compensation and others did not just because their employer choose to insure with a different insurance company.
The Supreme Court did not agree with the insurance companies and told them in no uncertain terms that the policies they issued did cover mesothelioma claims. The policies covered the activities of the employer during the insurance period. It did not matter that the employee did not develop mesothelioma until years later. They took the premiums and now they must pay up.
Carolann Hepworth, specialist solicitor at John Pickering and Partners LLP, said:
This is a tremendous victory for mesothelioma victims and their families. They will now finally receive the compensation they deserve and have waited for, for so long.
She commented further: It is hard to comprehend the mindset of the insurance companies who were happy to take millions of pounds in premiums and having spent the money then argue that thousands who were wrongly exposed to asbestos and developed a fatal illness are not entitled to any compensation”.
“The Judges have sent a strong message to the Insurers to pay these claims.”
As one of the Supreme Court Justices Lord Clarke said: “it would be remarkable if the insurers were not liable under the policies. The whole purpose of the policies was to insure the employers against their liability to the workers.”
Background: Every year, there are more than 2000 cases of mesothelioma in the UK, the exposure in the UK being comparatively high because we imported so much brown asbestos. Much of the exposure to asbestos took place more than 40 years ago and employers have gone out of business. If we can trace the insurance Company on risk at the time, our clients may receive compensation from the Insurance Company
Monday, 2 April 2012
Friday, 2 December 2011
Supreme Court Monday 5th December 2011
On appeal from the Court of Appeal Civil Division (England and Wales)
The construction of employers’ liability policies, in the context of liabilities incurred by employers for mesothelioma, under which an indemnity is provided if an injury or disease is ‘sustained’ or ‘contracted’ during the period of insurance.
There are nine appeals to the Supreme Court arising out of six separate actions. They arise from the deaths from mesothelioma of employees who inhaled asbestos fibres during employment. In each case the employees’ personal representatives or the employers liable to them seek to recover loss from the employers’ insurers under policies of employers’ liability insurance covering periods from the late 1940s to 1998. The principal issue is what constitutes the ‘trigger’ for liability of an insurer to indemnify the insured within any policy period: in particular whether it is the tortious exposure of a victim to asbestos dust, or the onset of mesothelioma.
Lord Phillips of Worth Matravers
Lord Mance of Frognal
Lord Kerr of Tonaghmore
Lord Clarke of Stone-cum-Ebony
Lord Dyson
Time estimate number of days 8 days
Hearing date 05 Dec 2011
.
..
The construction of employers’ liability policies, in the context of liabilities incurred by employers for mesothelioma, under which an indemnity is provided if an injury or disease is ‘sustained’ or ‘contracted’ during the period of insurance.
There are nine appeals to the Supreme Court arising out of six separate actions. They arise from the deaths from mesothelioma of employees who inhaled asbestos fibres during employment. In each case the employees’ personal representatives or the employers liable to them seek to recover loss from the employers’ insurers under policies of employers’ liability insurance covering periods from the late 1940s to 1998. The principal issue is what constitutes the ‘trigger’ for liability of an insurer to indemnify the insured within any policy period: in particular whether it is the tortious exposure of a victim to asbestos dust, or the onset of mesothelioma.
Lord Phillips of Worth Matravers
Lord Mance of Frognal
Lord Kerr of Tonaghmore
Lord Clarke of Stone-cum-Ebony
Lord Dyson
Time estimate number of days 8 days
Hearing date 05 Dec 2011
.
..
Thursday, 7 July 2011
Sponsored Walk
Sponsored walkers Sunday 29th May
A big thank you to everyone who took part in the sponsored walk, it was a great turnout and it didn't rain this year. I will let you know how much money we have raised in total so far it it 471.00, so a well done everyone
A big thank you to everyone who took part in the sponsored walk, it was a great turnout and it didn't rain this year. I will let you know how much money we have raised in total so far it it 471.00, so a well done everyone
Friday, 3 June 2011
Mesothelima Cases Likely Underreported Worldwide
The study is the first to provide a global estimate of unreported mesothelioma cases based on the collective experience of countries with available data on asbestos use and the disease.
Malignant mesothelioma is caused almost exclusively by exposure to asbestos. The disease is difficult to diagnose until it is far advanced, and the prognosis is usually poor. The study’s authors used numbers of mesothelioma deaths as a proxy for numbers of cases, because mesothelioma patients usually die shortly after diagnosis. Also, in many countries, deaths in general tend to be more uniformly and accurately reported than diagnoses.
The authors assessed the relationship between country-level asbestos use from 1920 through 1970 and mesothelioma deaths reported between 1994 and 2008. Cumulative asbestos use in 89 countries, which accounted for more than 82 percent of the global population in the year 2000, totaled more than 65 million metric tons during 1920–1970. The United States, Russia, United Kingdom, Germany, and Japan led the group in asbestos use, defined as production plus import minus export. For the 56 countries also reporting mesothelioma data, there were approximately 174,300 such deaths during 1994–2008.
Mesothelioma typically develops 20–50 years after exposure to asbestos. Accordingly, a country’s cumulative use of asbestos in prior decades was found to clearly and reliably predict numbers of recent mesothelioma deaths in the countries reporting mortality data. When the authors extrapolated this finding to the 33 countries not reporting mesothelioma data, they estimated 38,900 additional cases may have occurred in these countries during that same 15-year period.
“Our most important finding is the magnitude of unreported mesothelioma in countries that use asbestos at substantial levels but report no cases of the disease,” says study co-author Ken Takahashi of the University of Occupational and Environmental Health in Japan. Such countries include Russia, Kazakstan, China, and India, which rank in the top 15 countries for cumulative asbestos use.
Takahashi says any country that uses asbestos is certain to have cases of mesothelioma. He notes the study’s estimates may be conservative because both asbestos use and mesothelioma may be underreported in the countries used as the basis for their estimates.
The authors propose that every country ban the mining, use, and export of asbestos because, Takahashi says, mesothelioma can be prevented by eliminating exposure to asbestos. They also propose that developed countries share experience and technology to help developing countries better diagnose, report, and manage mesothelioma cases.
Thursday, 2 June 2011
Proteins May Hold Key to Mesothelioma Susceptibility
Altered cellular proteins may reveal clues as to why some people exposed to asbestos get mesothelioma, while others don’t. That is the conclusion of new research conducted in China.
Asbestos has long been known to cause mesothelioma, but the mechanisms by which it does so remain largely a mystery. For instance, scientists have been at a loss to say why some people can work around asbestos for years with no ill effects, while others with the same level of exposure contract malignant mesothelioma. Understanding why this happens may not only help predict who is at higher risk, but may also give doctors new targets for treatments.
Now, research from China is shedding new light on the subject. The researchers focused their attention on cellular proteins, the command ‘signals’ that direct most cellular activity. To conduct the study, the team looked at samples of three kinds of cells: healthy mesothelial cells, healthy mesothelial cells that were exposed to crocidolite asbestos in the lab, and malignant mesothelioma cells. A multiplex immunoblot-based assay test was used to measure the expression levels of 112 different proteins and phosphoproteins in each of the samples.
The levels of 16 proteins and phosophoproteins were altered (7 were decreased, 9 were increased) in the benign mesothelial cells after they were treated with crocidolite asbestos in the lab. Most of the effected proteins were those that involve DNA damage repair and cell cycle regulation. In the malignant mesothelioma cells, 21 proteins were found to be altered (5 were decreased, 16 were increased). The researchers report “substantial overlap” between the proteins affected in the asbestos-treated cell and the mesothelioma cells.
Reporting in the international medical journal Mutation Research, the Chinese scientists conclude that asbestos exposure “has extensive affects on regulatory pathways and networks” and that these altered proteins may be used in the future to indentify people who are at high risk for developing mesothelioma. Medical treatments that target the levels of these key proteins might also be a way to control mesothelioma, which is notoriously difficult to treat with standard therapeutic modalities.
Sources:
Wang, H et al, “Crocidolite asbestos-induced signal pathway dysregulation in mesothelioma cells”, May 6, 2011, Mutation Research. Epub ahead of print.
For more information go to http://www.survivingmesothelioma.com/
Asbestos has long been known to cause mesothelioma, but the mechanisms by which it does so remain largely a mystery. For instance, scientists have been at a loss to say why some people can work around asbestos for years with no ill effects, while others with the same level of exposure contract malignant mesothelioma. Understanding why this happens may not only help predict who is at higher risk, but may also give doctors new targets for treatments.
Now, research from China is shedding new light on the subject. The researchers focused their attention on cellular proteins, the command ‘signals’ that direct most cellular activity. To conduct the study, the team looked at samples of three kinds of cells: healthy mesothelial cells, healthy mesothelial cells that were exposed to crocidolite asbestos in the lab, and malignant mesothelioma cells. A multiplex immunoblot-based assay test was used to measure the expression levels of 112 different proteins and phosphoproteins in each of the samples.
The levels of 16 proteins and phosophoproteins were altered (7 were decreased, 9 were increased) in the benign mesothelial cells after they were treated with crocidolite asbestos in the lab. Most of the effected proteins were those that involve DNA damage repair and cell cycle regulation. In the malignant mesothelioma cells, 21 proteins were found to be altered (5 were decreased, 16 were increased). The researchers report “substantial overlap” between the proteins affected in the asbestos-treated cell and the mesothelioma cells.
Reporting in the international medical journal Mutation Research, the Chinese scientists conclude that asbestos exposure “has extensive affects on regulatory pathways and networks” and that these altered proteins may be used in the future to indentify people who are at high risk for developing mesothelioma. Medical treatments that target the levels of these key proteins might also be a way to control mesothelioma, which is notoriously difficult to treat with standard therapeutic modalities.
Sources:
Wang, H et al, “Crocidolite asbestos-induced signal pathway dysregulation in mesothelioma cells”, May 6, 2011, Mutation Research. Epub ahead of print.
For more information go to http://www.survivingmesothelioma.com/
Friday, 27 May 2011
Thanks A Million
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| Chris Knighton |
AFTER Mick Knighton died of asbestos-related cancer in 2001, his wife Chris vowed to raise £100,000 in her husband’s name because that was the average amount of compensation paid to mesothelioma sufferers.
But now, ten years after setting up the Mick Knighton Mesothelioma Research Fund, she is celebrating having collected ten times the amount she set out to raise.“It’s just amazing that we’ve reached £1m, and the fact this is Mick’s tenth anniversary year makes it even more special,” said Chris, of Wallsend. Mick was diagnosed with mesothelioma after returning from holiday with a chest infection.Chris said: “We were told there was no treatment, no cure and no hope.” Just eight months later, Mick, pictured, died.“Throughout Mick’s illness, we had both become increasingly aware of how little is known about mesothelioma and the vital need for more research into the disease,” said Chris. Mick had been exposed to asbestos while in the Navy. As a gunner, he was issued with anti-inflammable gauntlets and hoods, and the gun turret he manned was lined with asbestos. “Many of our donations are given by people who themselves have lost loved ones to the disease, and I’m so grateful for their support,” said Chris. “£1m is fantastic, but it’s what we’ve been able to do with it that’s important.” So far, the charity has funded four major research studies of mesothelioma, and the Rotary Club of Monkseaton Centenary this week presented Chris with a community service award for her fundraising efforts. “Our first study was into Alimta, the only licensed chemotherapy drug to help treat the disease,” she said. “Although not a cure, it may bring a better quality of life for longer to some.
“The next two studies are looking into treating mesothelioma by stem cells. Although in the early stages, the results so far have been encouraging. “The latest study is a new approach into starving the mesothelioma cells of the nutrients they need to survive.” The charity has also set up mesothelioma self-help and friendship groups in both North and South Tyneside to give sufferers and their families an opportunity to meet other people in similar circumstances. “My next challenge is to raise enough money to set up the first mesothelioma tissue and blood bank, which will have a major impact on research into the disease,” said Chris. The fund is holding a memorial service on Friday, July 1, at 11am at St Nicholas’s Cathedral in Newcastle.
Chris said: “The service is for all who have lost their lives to asbestos-related disease, and mesothelioma in particular, and will be followed by a sponsored dove release in their memory. “The service forms part of Action Mesothelioma Day, an annual event to raise awareness of mesothelioma.”
The service will be followed by a seminar at 1.30pm. To book a place at the seminar or make a donation, call (0191) 263 7386 or e-mail c.knighton@mkmrf.org.uk
To learn more about mesothelioma or the Mick Knighton Mesothelioma Research Fund, visit www.mickknightonmesorf.org
Monday, 16 May 2011
Bernie Brighton Marathon 2011
Well done to Bernie Barnaville for completing the Brighton Marathon and running it for our charity, he raised over six hundred pounds for his efforts, it was a huge commitment and we are very proud of him for doing it on behalf of the charity.
Don't forget our sponsored walk on Sunday 29th May, (details below)
Don't forget our sponsored walk on Sunday 29th May, (details below)
Renal Cancer Drug Can Be Used as New Treatment For Mesothelioma
Thursday, May 12th, 2011
In a study published in the May issue of the Journal of Thoracic Oncology, temsirolimus, a drug that is used to treat kidney cancer, has shown positive results when treating pleural mesothelioma cells. Temsirolimus is a kinase inhibitor, which blocks the growth of mammalian target of rapamycin (mTOR) proteins. These proteins are found in mesothelioma cells.
Malignant mesothelioma, an uncommon form of cancer that develops in the lining of the vital organs in the body, is directly linked to asbestos exposure. Because of the long latency period associated with the cancer, it is frequently not diagnosed until the late stages of the disease.
Temsirolimus had a strong growth-stopping effect on all mesothelioma cells. However, cisplatin, a commonly used chemotherapy drug for mesothelioma treatment, displayed hypersensitivity against temsirolimus. Because of this, researchers in the study believe temsirolimus can be used in combination with other current chemotherapeutic treatments as a second-line treatment.
Professor Walter Berger of the Institute of Cancer Research at the Medical University of Vienna, a researcher on the project, stated, “Malignant mesothelioma is a severe human malignancy characterized by a very bad prognosis, with a mean patient survival of less than one year. This unacceptable situation is mainly caused by late diagnosis combined with a distinct resistance to all forms of systemic therapy available so far.”
Professor Berger commented further on the results of the study saying, “In our preclinical study, published in the JTO, we were able to demonstrate that the inhibition of the major oncogene mTOR is activate against human mesothelioma especially after development of chemotherapy resistance both in vitro and in vivo. These results suggest the initiation of clinical trials involving mTOR inhibitors as novel anti-mesothelioma strategy.”
In a study published in the May issue of the Journal of Thoracic Oncology, temsirolimus, a drug that is used to treat kidney cancer, has shown positive results when treating pleural mesothelioma cells. Temsirolimus is a kinase inhibitor, which blocks the growth of mammalian target of rapamycin (mTOR) proteins. These proteins are found in mesothelioma cells.
Malignant mesothelioma, an uncommon form of cancer that develops in the lining of the vital organs in the body, is directly linked to asbestos exposure. Because of the long latency period associated with the cancer, it is frequently not diagnosed until the late stages of the disease.
Temsirolimus had a strong growth-stopping effect on all mesothelioma cells. However, cisplatin, a commonly used chemotherapy drug for mesothelioma treatment, displayed hypersensitivity against temsirolimus. Because of this, researchers in the study believe temsirolimus can be used in combination with other current chemotherapeutic treatments as a second-line treatment.
Professor Walter Berger of the Institute of Cancer Research at the Medical University of Vienna, a researcher on the project, stated, “Malignant mesothelioma is a severe human malignancy characterized by a very bad prognosis, with a mean patient survival of less than one year. This unacceptable situation is mainly caused by late diagnosis combined with a distinct resistance to all forms of systemic therapy available so far.”
Professor Berger commented further on the results of the study saying, “In our preclinical study, published in the JTO, we were able to demonstrate that the inhibition of the major oncogene mTOR is activate against human mesothelioma especially after development of chemotherapy resistance both in vitro and in vivo. These results suggest the initiation of clinical trials involving mTOR inhibitors as novel anti-mesothelioma strategy.”
Monday, 21 February 2011
Charity Sponsored Walk Sunday 29th May
We are again doing a sponsored walk this year to raise the much needed funds for research. The walk will be from Holywell to the Southern Water plant along the seafront, and will start at 11.00am then afterwards at Eastourne United Football Club for a barbeque a raffle and a few well earned drinks.
Anyone who wants to take part please contact me 01323 649220 or email millietalula@supanet.com or chris@nimaprint.co.ukl and I will send you out a sponsor form and all the details.
The theme of the walk is to "Be A Little Angel & Walk For Charity" so we would like to see wings, halo's and any other angelic things you can think of to wear.
Thanks for all your support and we look forward to seeing you there.
Anyone who wants to take part please contact me 01323 649220 or email millietalula@supanet.com or chris@nimaprint.co.ukl and I will send you out a sponsor form and all the details.
The theme of the walk is to "Be A Little Angel & Walk For Charity" so we would like to see wings, halo's and any other angelic things you can think of to wear.
Thanks for all your support and we look forward to seeing you there.
Thursday, 2 December 2010
Brighton Marathon 2011
Bernie Barnaville is running the Brighton marathon in aid of our charity on Sunday 11th April 2011, it is a gruelling 26 miles, so think he is wonderful to take this on.
He has set up a donation and information site www.justgivine.com/bernie-barnaville and also has sponsor packs available, so please give him your support.
All the money you raise goes directly to Mesothlioma & Asbestos research so every penny is needed to find a cure.
The opening of the UK Centre for Medical Research and Inovation planned for London in 2011 will hopefully concentrate some of it research on asbestos exposure and subsequent diseases, it's new chief executive Sir Paul Nurse is a renown specialist in cancer research and cell biology.
He has set up a donation and information site www.justgivine.com/bernie-barnaville and also has sponsor packs available, so please give him your support.
All the money you raise goes directly to Mesothlioma & Asbestos research so every penny is needed to find a cure.
The opening of the UK Centre for Medical Research and Inovation planned for London in 2011 will hopefully concentrate some of it research on asbestos exposure and subsequent diseases, it's new chief executive Sir Paul Nurse is a renown specialist in cancer research and cell biology.
Wednesday, 27 October 2010
Experimental Drug
Study Recruiting Mesothelioma Patients for Testing of Experimental Drug
Oct 26, 2010
A Phase II clinical trial, sponsored by the National Cancer Institute (NCI), is recruiting mesthelioma patients to test an experimental drug intended to block proteins that aid the growth of cancer cells. It will measure drug safety, patient response and survival rates.
Both men and women age 18 and older will be included in the trial. Patients must have undergone standard chemotherapy that has not been effective in halting their cancer. Patients may be diagnosed with either pleural mesothelioma or peritoneal mesothelioma. Both cancers are linked to asbestos exposure, and can take twenty, thirty years or more to develop after the initial exposure.
Estimated enrollment for the study is 55 patients and it will be conducted at the National Institute of Health Clinical Center in Bethesda, MD USA.
The trial is expected to be complete by April 2012.
Oct 26, 2010
A Phase II clinical trial, sponsored by the National Cancer Institute (NCI), is recruiting mesthelioma patients to test an experimental drug intended to block proteins that aid the growth of cancer cells. It will measure drug safety, patient response and survival rates.
Both men and women age 18 and older will be included in the trial. Patients must have undergone standard chemotherapy that has not been effective in halting their cancer. Patients may be diagnosed with either pleural mesothelioma or peritoneal mesothelioma. Both cancers are linked to asbestos exposure, and can take twenty, thirty years or more to develop after the initial exposure.
Estimated enrollment for the study is 55 patients and it will be conducted at the National Institute of Health Clinical Center in Bethesda, MD USA.
The trial is expected to be complete by April 2012.
Wednesday, 13 October 2010
EL Trigger Litigation Judgement
The Court of Appeal gave its long awaited judgment in the EL Trigger Litigation on 8 October 2010. It had been hoped that this hugely anticipated judgment would bring certainty to the question of which insurer should meet a mesothelioma claim resulting from historic asbestos exposure. What has emerged however is a very complex outcome. The decision, covering more than 160 pages, has almost as many permutations as there were parties to the case.
The background
· Bolton v MMI set the scene in 2006. It was a public liability (PL) case in which it was held that a mesothelioma victim sustains injury for the first time when the tumour starts to develop, 10 years before the manifestation of symptoms.
· Four insurers (Builders Accident, Independent, Excess and Municipal Mutual) had employers liability (EL) policies which were worded in a very similar way to the PL policy in Bolton and which responded if the injury was sustained or contracted during the term of the policy. Those insurers then started to decline EL claims on the Bolton principle.
· Until 2006 insurers had always taken the view that EL policies responded on a causation basis (i.e. if exposure occurred during the life of the policy), and the adoption of the ‘Boltonite’ approach had the effect of shifting insurer responsibility from exposure to the time when the tumour started to develop. This led to vast “black holes” in insurance cover.
· Strikingly, even if the tumour developed during the currency of the policy, claimants who were ex-employees at the time would not on the Boltonites’ argument be covered. This issued weighed particularly heavily on Burton J at first instance. Having considered the overwhelming evidence that until Bolton, the market (including the four insurers) used the verbs ‘cause’, ‘contract’ and ‘sustain’ interchangeably, he concluded that the four insurers’ policies should respond on a traditional causation basis.
The Boltonites appealed.
The Court of Appeal judgment
The Court of Appeal judges took divergent approaches. However, the following principles emerge:
· Where the wording used is “sustained”, the policy which responds is the one in force when the tumour starts to develop.
· Where the wording used is “contracted” (that is synonymous with the word “caused”) then the policy in force at the time of exposure responds.
The lack of unity means each judge’s reasoning needs to be considered in turn.
Rix LJ
· A disease is contracted (within the meaning of the policy) when it is caused.
· Mesothelioma is not sustained on inhalation. Although this frustrates the commercial purpose of the policies (to provide both cover for employers and security for employees), there is no ambiguity in the wording sufficient to justify an alternative interpretation.
· Policies which began after the Employers’ Liability Compulsory Insurance Act 1969, (which came into force in January 1972), respond if the mesothelioma was caused during the life of the policy. This is because such policies are deemed to comply with the Act.
Burnton LJ
· Insurers were entitled to depart from their previous practice of indemnifying and paying mesothelioma claims on a causation basis as the aetiology of mesothelioma became better understood.
· Considered the court was bound by Bolton. Policies with a “sustained” wording would only respond at the date when the tumour starts to develop. By contrast, policies with a “contracted” wording would respond if in force at exposure.
Smith LJ
· The policies should be interpreted according to the understanding of the parties at the time they were entered into. Until Bolton v MMI it was not appreciated that a mesothelioma victim “sustains” injury only when the tumour starts to develop.
· Considered she was not bound by Bolton as that decision related to public liability cases only.
Unfinished business?
This is an extraordinary judgment. Such was the lack of consensus that the leading judgment (Rix LJ) has a seven paragraph postscript responding to the other judgments.
Crucially, Rix LJ considered the court bound by Bolton; had this not been the case he would have preferred to hold that where a victim develops mesothelioma there is actionable injury from the date of inhalation, because liability is created when an employer has materially contributed to the risk. Having not been allowed to arrive at his preferred solution, Rix LJ acknowledged that his decision led to “an unfortunate conclusion”.
For the market, this lack of certainty is deeply troubling. Public authorities will now have to make provision for exposure prior to 1974 (due to the MMI wording), and private sector businesses will have to meet claims if they have a pre-1972 ‘sustained’ policy.
Both defendants and insurers will, by virtue of the joint and several liability provisions in section 3 of the Compensation Act, become liable for an increasing burden of mesothelioma claims as they will now need to fill the insurance “black holes” which result from the vindication of the Boltonites’ position on EL policies written on a ‘sustained’ basis.
Further appeals to the Supreme Court are inevitable. Until that time, the judgment means that some claimants who have no solvent employer to sue may go uncompensated.
The background
· Bolton v MMI set the scene in 2006. It was a public liability (PL) case in which it was held that a mesothelioma victim sustains injury for the first time when the tumour starts to develop, 10 years before the manifestation of symptoms.
· Four insurers (Builders Accident, Independent, Excess and Municipal Mutual) had employers liability (EL) policies which were worded in a very similar way to the PL policy in Bolton and which responded if the injury was sustained or contracted during the term of the policy. Those insurers then started to decline EL claims on the Bolton principle.
· Until 2006 insurers had always taken the view that EL policies responded on a causation basis (i.e. if exposure occurred during the life of the policy), and the adoption of the ‘Boltonite’ approach had the effect of shifting insurer responsibility from exposure to the time when the tumour started to develop. This led to vast “black holes” in insurance cover.
· Strikingly, even if the tumour developed during the currency of the policy, claimants who were ex-employees at the time would not on the Boltonites’ argument be covered. This issued weighed particularly heavily on Burton J at first instance. Having considered the overwhelming evidence that until Bolton, the market (including the four insurers) used the verbs ‘cause’, ‘contract’ and ‘sustain’ interchangeably, he concluded that the four insurers’ policies should respond on a traditional causation basis.
The Boltonites appealed.
The Court of Appeal judgment
The Court of Appeal judges took divergent approaches. However, the following principles emerge:
· Where the wording used is “sustained”, the policy which responds is the one in force when the tumour starts to develop.
· Where the wording used is “contracted” (that is synonymous with the word “caused”) then the policy in force at the time of exposure responds.
The lack of unity means each judge’s reasoning needs to be considered in turn.
Rix LJ
· A disease is contracted (within the meaning of the policy) when it is caused.
· Mesothelioma is not sustained on inhalation. Although this frustrates the commercial purpose of the policies (to provide both cover for employers and security for employees), there is no ambiguity in the wording sufficient to justify an alternative interpretation.
· Policies which began after the Employers’ Liability Compulsory Insurance Act 1969, (which came into force in January 1972), respond if the mesothelioma was caused during the life of the policy. This is because such policies are deemed to comply with the Act.
Burnton LJ
· Insurers were entitled to depart from their previous practice of indemnifying and paying mesothelioma claims on a causation basis as the aetiology of mesothelioma became better understood.
· Considered the court was bound by Bolton. Policies with a “sustained” wording would only respond at the date when the tumour starts to develop. By contrast, policies with a “contracted” wording would respond if in force at exposure.
Smith LJ
· The policies should be interpreted according to the understanding of the parties at the time they were entered into. Until Bolton v MMI it was not appreciated that a mesothelioma victim “sustains” injury only when the tumour starts to develop.
· Considered she was not bound by Bolton as that decision related to public liability cases only.
Unfinished business?
This is an extraordinary judgment. Such was the lack of consensus that the leading judgment (Rix LJ) has a seven paragraph postscript responding to the other judgments.
Crucially, Rix LJ considered the court bound by Bolton; had this not been the case he would have preferred to hold that where a victim develops mesothelioma there is actionable injury from the date of inhalation, because liability is created when an employer has materially contributed to the risk. Having not been allowed to arrive at his preferred solution, Rix LJ acknowledged that his decision led to “an unfortunate conclusion”.
For the market, this lack of certainty is deeply troubling. Public authorities will now have to make provision for exposure prior to 1974 (due to the MMI wording), and private sector businesses will have to meet claims if they have a pre-1972 ‘sustained’ policy.
Both defendants and insurers will, by virtue of the joint and several liability provisions in section 3 of the Compensation Act, become liable for an increasing burden of mesothelioma claims as they will now need to fill the insurance “black holes” which result from the vindication of the Boltonites’ position on EL policies written on a ‘sustained’ basis.
Further appeals to the Supreme Court are inevitable. Until that time, the judgment means that some claimants who have no solvent employer to sue may go uncompensated.
Tuesday, 5 October 2010
Court Date Friday 8th October 2010
El Trigger Litigation
The verdict in the trigger litigation appeal is due to be handed down on Friday at the Royal Court Of Justice London. If the case is won by the victims & families of those exposed to asbestos negligently by their employers it will force insurance companies to finally pay the compensation they have been fighting to hold onto for the last few years. Below is a short outline of the case and why it spent so long in the courts.
Cases were heard together to resolve an important dispute over the relevant ‘trigger’ under various employers’ liability insurance policies which applied to employers of those who suffered and died from mesothelioma. The EL Trigger trial focused on what had to happen during the period of insurance when the insuring clause of a policy stipulated either that an injury must be "sustained” or that a disease must be "contracted” during the period of insurance. The insurers will argue on appeal that the relevant ‘trigger’ under the policies is not the exposure to asbestos, but the development, many years later, of mesothelioma
The hearing has hinged on which policy was key - the one at the time of exposure or when a worker becomes ill. Employers take out liability insurance to insure them against the cost of legal action by staff injured at work.
But a group of insurance firms had questioned which policy should be enacted. They argued during the nine-week hearing that the policy in place at the time the cancer develops was the one that a compensation claim should be brought against rather than the policy that was in place when the worker was employed by the firm.
They said this was common-sense as victims could have worked for several employers where they were exposed to asbestos. However, this stance was challenged by families, employers and one insurance firm. Solicitors representing the families involved in the case said this would make it harder to secure compensation.
One of the key problems is that many modern-day insurance schemes have exemptions for asbestos. That then only leaves the employer for the victims to go after, but as the disease takes so long to develop many of the firms have ceased to exist.
The verdict in the trigger litigation appeal is due to be handed down on Friday at the Royal Court Of Justice London. If the case is won by the victims & families of those exposed to asbestos negligently by their employers it will force insurance companies to finally pay the compensation they have been fighting to hold onto for the last few years. Below is a short outline of the case and why it spent so long in the courts.
Cases were heard together to resolve an important dispute over the relevant ‘trigger’ under various employers’ liability insurance policies which applied to employers of those who suffered and died from mesothelioma. The EL Trigger trial focused on what had to happen during the period of insurance when the insuring clause of a policy stipulated either that an injury must be "sustained” or that a disease must be "contracted” during the period of insurance. The insurers will argue on appeal that the relevant ‘trigger’ under the policies is not the exposure to asbestos, but the development, many years later, of mesothelioma
The hearing has hinged on which policy was key - the one at the time of exposure or when a worker becomes ill. Employers take out liability insurance to insure them against the cost of legal action by staff injured at work.
But a group of insurance firms had questioned which policy should be enacted. They argued during the nine-week hearing that the policy in place at the time the cancer develops was the one that a compensation claim should be brought against rather than the policy that was in place when the worker was employed by the firm.
They said this was common-sense as victims could have worked for several employers where they were exposed to asbestos. However, this stance was challenged by families, employers and one insurance firm. Solicitors representing the families involved in the case said this would make it harder to secure compensation.
One of the key problems is that many modern-day insurance schemes have exemptions for asbestos. That then only leaves the employer for the victims to go after, but as the disease takes so long to develop many of the firms have ceased to exist.
Tuesday, 28 September 2010
Clinical Trial Of Mesothelioma Med Begins
Bionomics, an Australian biotechnology company, has announced the beginning of Phase II clinical trials for its vascular disrupting agent BNC105 as a treatment for mesothelioma. The company announced its plans to test the drug on mesothelioma patients in December 2009. It will partner with the Australasian Lung Cancer Trials Group (ALTG) and the NHMRC (National Health and Medical Research Council) Clinical Trial Centre.
The clinical trial involves 60 patients at 12 centers in Australia.It is a single arm, unblinded study for patients with mesothelioma who have progressed on platinum/pemetrexed chemotherapy. BNC105 will be administered on days 1 and 8 of 21-day cycles. Treatment will continue until disease progression. The primary objective is to determine the tumor response rate.
Principal investigator for the trial is Dr. Anna Nowak, professor at the Faculty of Medicine, University of Western Australia and consultant medical oncologist at Sir Charles Gairdner Hospital. According to information on the company’s web site, Bionomics has already commenced Phase II testing of the anti-cancer properties of BNC105 in renal cancer in the United States. The commencement of this Phase II trial follows a successful BNC105 Phase I clinical trial in patients with advanced cancers at the Peter MacCallum Cancer Centre, the Western Hospital, Austin Health and the Royal Melbourne Hospital.
Dr. Nowak says, “Mesothelioma remains a substantial problem in Australia and other parts of the world. An early clinical trial of BNC105 suggested some promise in mesothelioma. This Phase II trial will provide hope and an opportunity to participate in a research study for people with mesothelioma who do not have other options for treatment.”
Dr. Deborah Rathjen, CEO and Managing Director of Bionomics, says the company expects to report interim results of this study in mesothelioma patients in early 2011.
In 2005, Bionomics reports there were 597 new cases of mesothelioma diagnosed in Australia and in 2006 there were 486 deaths attributed to mesothelioma.
More information about the clinical trial is available online. Inquiries may be directed to:
Bionomics Limited
Dr Deborah Rathjen
CEO & Managing Director
+61 8 8354 6101 / 0418 160 425
drathjen@bionomics.com.au
The clinical trial involves 60 patients at 12 centers in Australia.It is a single arm, unblinded study for patients with mesothelioma who have progressed on platinum/pemetrexed chemotherapy. BNC105 will be administered on days 1 and 8 of 21-day cycles. Treatment will continue until disease progression. The primary objective is to determine the tumor response rate.
Principal investigator for the trial is Dr. Anna Nowak, professor at the Faculty of Medicine, University of Western Australia and consultant medical oncologist at Sir Charles Gairdner Hospital. According to information on the company’s web site, Bionomics has already commenced Phase II testing of the anti-cancer properties of BNC105 in renal cancer in the United States. The commencement of this Phase II trial follows a successful BNC105 Phase I clinical trial in patients with advanced cancers at the Peter MacCallum Cancer Centre, the Western Hospital, Austin Health and the Royal Melbourne Hospital.
Dr. Nowak says, “Mesothelioma remains a substantial problem in Australia and other parts of the world. An early clinical trial of BNC105 suggested some promise in mesothelioma. This Phase II trial will provide hope and an opportunity to participate in a research study for people with mesothelioma who do not have other options for treatment.”
Dr. Deborah Rathjen, CEO and Managing Director of Bionomics, says the company expects to report interim results of this study in mesothelioma patients in early 2011.
In 2005, Bionomics reports there were 597 new cases of mesothelioma diagnosed in Australia and in 2006 there were 486 deaths attributed to mesothelioma.
More information about the clinical trial is available online. Inquiries may be directed to:
Bionomics Limited
Dr Deborah Rathjen
CEO & Managing Director
+61 8 8354 6101 / 0418 160 425
drathjen@bionomics.com.au
Monday, 9 August 2010
Medical Research Council Joint Venture Announced
MRC/British Lung Foundation/Mick Knighton Mesothelioma Fund
One clinical research training fellowship will be awarded jointly by the MRC, British Lung Foundation and Mick Knighton Mesothelioma Fund. The British Lung Foundation is the only UK charity working for everyone affected by lung disease. The BLF focuses its resources on providing support for people affected by lung disease today; and works in a variety of ways, including funding world-class research, to bring about positive change to improve treatment, care and support for people affected by lung disease now and in the future. The Mick Knighton Mesothelioma Research Fund aims to raise awareness of mesothelioma, fund crucial research projects, and improve diagnosis, treatment and care for mesothelioma sufferers. Applicants must focus their work on mesothelioma.
The British Lung Foundation's research strategy, which details its research priorities, can be found at: www.lunguk.org
One clinical research training fellowship will be awarded jointly by the MRC, British Lung Foundation and Mick Knighton Mesothelioma Fund. The British Lung Foundation is the only UK charity working for everyone affected by lung disease. The BLF focuses its resources on providing support for people affected by lung disease today; and works in a variety of ways, including funding world-class research, to bring about positive change to improve treatment, care and support for people affected by lung disease now and in the future. The Mick Knighton Mesothelioma Research Fund aims to raise awareness of mesothelioma, fund crucial research projects, and improve diagnosis, treatment and care for mesothelioma sufferers. Applicants must focus their work on mesothelioma.
The British Lung Foundation's research strategy, which details its research priorities, can be found at: www.lunguk.org
Friday, 14 May 2010
Sponsored Walk Sunday 2nd May 2010
Monday, 26 April 2010
Experimental Vaccine Shows Early Promise Against Mesothelioma
A vaccine developed at the Erasmus Medical Research Centre in Rotterdam has shown early promise in its first clinical trials.
Researchers at Erasmus say the vaccine brings about an anti-tumor reponse, Dr Joachim Aerts a pulmonary physician says "We hope to further develop our methods so it will be possible to increase survival in patients with Mesothelioma and eventually vaccinate persons who have been in contact with asbestos to prevent them from getting asbestos related diseases".
The findings have been published online ahead of print publication in the American Thoracic Society's American Journal of Respiratory and Critical Care Medicine
The use of asbestos has been prohibited in most developed countries, but the time between asbestos exposure and diagnosis of mesothelioma can be up to 50 years. The incidence of mesothelioma, therefore, is still on the rise and expected to continue to increase until 2020. Once diagnosed, mesothelioma has a median survival time of 12 months. The standard chemotherapeutic treatment only improves survival time by about three months.
The anticipated increase in the incidence of mesothelioma, together with the paucity of treatment options, has spurred considerable interest in the development of new therapies. Immunotherapy, which uses the body's own immune system to target and destroy cancer cells, has been shown to have some promise.
Researchers at Erasmus say the vaccine brings about an anti-tumor reponse, Dr Joachim Aerts a pulmonary physician says "We hope to further develop our methods so it will be possible to increase survival in patients with Mesothelioma and eventually vaccinate persons who have been in contact with asbestos to prevent them from getting asbestos related diseases".
The findings have been published online ahead of print publication in the American Thoracic Society's American Journal of Respiratory and Critical Care Medicine
The use of asbestos has been prohibited in most developed countries, but the time between asbestos exposure and diagnosis of mesothelioma can be up to 50 years. The incidence of mesothelioma, therefore, is still on the rise and expected to continue to increase until 2020. Once diagnosed, mesothelioma has a median survival time of 12 months. The standard chemotherapeutic treatment only improves survival time by about three months.
The anticipated increase in the incidence of mesothelioma, together with the paucity of treatment options, has spurred considerable interest in the development of new therapies. Immunotherapy, which uses the body's own immune system to target and destroy cancer cells, has been shown to have some promise.
National Centre For Asbesto-Related Diseases Announced
The blow dealt by the recent let down from the Government, ruling out mesothelioma compensation for pleural plaques sufferers, was softened by plans announced to create an Employers’ Liability Tracing Bureau and the setting up of a UK National Centre for Asbestos Related Disease.
A petition calling for the set-up of a National Centre for Asbestos-Related Diseases (NCARD), with the backing of personal injury and asbestosis lawyers, had been put previously to the Government. In November 2009, the Asbestos Sub-Committee of the All Parliamentary Group on Occupational Safety and Health met up to discuss various asbestos-related issues. On the agenda was NCARD, and MPs were told that it was “moving forward” and “progressing quite rapidly”.
On February 25th,the Government accompanied the negative pleural plaques ruling with an outlined plan to commit £3m funding towards the Centre, as well as increasing state funded, lump sum payments to dependant family members.
There has long been an urgent need in the UK to establish a National Centre to research effective treatments for asbestos-related conditions, such as asbestosis and in particular, malignant mesothelioma, for which the UK has one of the highest reported incidence rates.
The UK was a leader in the manufacture of asbestos products, and consequently has one of the highest rates of mesothelioma in the world.
A NCARD Strategy Document was recently published highlighting their objective to be a virtual network centre. It would link the best UK researchers together with others from around the world and act as a focal point for the attraction of significant dedicated funds.
The Strategy Document already highlights the significant need to increase research and funding in the UK into asbestos-related diseases, and, in particular, develop more effective treatments for malignant mesothelioma.
Another key objective of NCARD will be to increase asbestos awareness of the ever present dangers of exposure and help dispel commonly held misconceptions, especially with regard to white asbestos. The setting up of NCARD could be of long term benefit to the adoption of enlightened attitudes and easing the asbestos compensation process for sufferers pursuing claims.
A petition calling for the set-up of a National Centre for Asbestos-Related Diseases (NCARD), with the backing of personal injury and asbestosis lawyers, had been put previously to the Government. In November 2009, the Asbestos Sub-Committee of the All Parliamentary Group on Occupational Safety and Health met up to discuss various asbestos-related issues. On the agenda was NCARD, and MPs were told that it was “moving forward” and “progressing quite rapidly”.
On February 25th,the Government accompanied the negative pleural plaques ruling with an outlined plan to commit £3m funding towards the Centre, as well as increasing state funded, lump sum payments to dependant family members.
There has long been an urgent need in the UK to establish a National Centre to research effective treatments for asbestos-related conditions, such as asbestosis and in particular, malignant mesothelioma, for which the UK has one of the highest reported incidence rates.
The UK was a leader in the manufacture of asbestos products, and consequently has one of the highest rates of mesothelioma in the world.
A NCARD Strategy Document was recently published highlighting their objective to be a virtual network centre. It would link the best UK researchers together with others from around the world and act as a focal point for the attraction of significant dedicated funds.
The Strategy Document already highlights the significant need to increase research and funding in the UK into asbestos-related diseases, and, in particular, develop more effective treatments for malignant mesothelioma.
Another key objective of NCARD will be to increase asbestos awareness of the ever present dangers of exposure and help dispel commonly held misconceptions, especially with regard to white asbestos. The setting up of NCARD could be of long term benefit to the adoption of enlightened attitudes and easing the asbestos compensation process for sufferers pursuing claims.
Wednesday, 24 March 2010
Jan Egerton Mesothelioma Story
Jan Egerton has been fighting Mesothelioma for eight years. Read her inspirational and brave story on http://www.jansjourney.co.uk/ , this is a truly remarkable lady. I was deeply moved by her story, her bravery and her sense of humour in dealing with this terrible disease.
Mesothelioma Action Day Friday 2nd July 2010.
Mesothelioma Action Day Friday 2nd July 2010.
Tuesday, 23 March 2010
New Research Could Help Provide Answers To Mesothelioma
The British Lung Foundation is working with the June Hancock Mesothelioma Research Fund to support new research which could lead to better treatments for mesothelioma, an incurable asbestos-related cancer that affects the tissues lining the outside of the lung and the chest wall (pleura).
Following a competitive grant application process, Dr Stefan Marciniak at the University of Cambridge was selected from a large field of excellent applicants, to be awarded the funding for his project, which will study the relationship between cell stress and mesothelioma. The grant is worth £118,839 and will run over two years.
Dr Marciniak heads a research group at the University of Cambridge. He is also a chest physician, specialising in diseases of the pleura. Through his research he hopes to gain a better understanding of why the cancer progresses. This will help scientists to create new ways of combating the disease.
The study will look at proteins which are produced by a part of the cell called the endoplasmic reticulum (ER). Previous research by this group has shown that when these proteins are not made correctly, ER stress occurs and that ER stress is increased in mesothelioma cells. To investigate whether ER stress is linked to the progression of this cancer, the team will analyse tissue samples of mesothelioma. Furthermore, they hope to determine whether the amount of ER stress can predict the speed at which mesothelioma develops and the success of chemotherapy treatments.
Speaking about the research, Dr Stefan Marciniak, said: “I am thrilled to be awarded the June Hancock Mesothelioma Research Fund grant by the British Lung Foundation. As a chest physician I treat patients with pleural disease. I hope to be able to take my findings out of the laboratory to improve the treatments available to my patients in the future.”
Dr Noemi Eiser, Honorary Medical Director for the British Lung Foundation, said: “Someone dies from mesothelioma in the UK every five hours. Research grants, like the June Hancock Mesothelioma Research Fund, are so important in furthering our understanding of this cruel lung disease. This study could really make a difference to the way we treat people with the disease in the future.”
Spokesperson from June Hancock Mesothelioma Research Fund, Dr Kate Hill said: “The June Hancock Mesothelioma Research Fund is committed to supporting research that will find new ways to provide real benefits for patients. Choosing just one research study to fund from amongst the high quality applications we received was a difficult decision. We are convinced that Dr Marciniak’s work has the potential to make a major contribution to current knowledge about mesothelioma and its treatment.”
Later this year, the British Lung Foundation will launch their annual Action Mesothelioma Day on 2nd July. The day aims to raise awareness of the disease and improve the care and treatment for patients. It will also highlight the risk of asbestos exposure, particularly amongst the at-risk groups e.g. tradespeople.
For more information please contact Tova Turkel tova.turkel@blf-uk.org on 0207 688 5564 or Hayley Richardson hayley.richardson@blf-uk.org on 0207 688 5565.
Following a competitive grant application process, Dr Stefan Marciniak at the University of Cambridge was selected from a large field of excellent applicants, to be awarded the funding for his project, which will study the relationship between cell stress and mesothelioma. The grant is worth £118,839 and will run over two years.
Dr Marciniak heads a research group at the University of Cambridge. He is also a chest physician, specialising in diseases of the pleura. Through his research he hopes to gain a better understanding of why the cancer progresses. This will help scientists to create new ways of combating the disease.
The study will look at proteins which are produced by a part of the cell called the endoplasmic reticulum (ER). Previous research by this group has shown that when these proteins are not made correctly, ER stress occurs and that ER stress is increased in mesothelioma cells. To investigate whether ER stress is linked to the progression of this cancer, the team will analyse tissue samples of mesothelioma. Furthermore, they hope to determine whether the amount of ER stress can predict the speed at which mesothelioma develops and the success of chemotherapy treatments.
Speaking about the research, Dr Stefan Marciniak, said: “I am thrilled to be awarded the June Hancock Mesothelioma Research Fund grant by the British Lung Foundation. As a chest physician I treat patients with pleural disease. I hope to be able to take my findings out of the laboratory to improve the treatments available to my patients in the future.”
Dr Noemi Eiser, Honorary Medical Director for the British Lung Foundation, said: “Someone dies from mesothelioma in the UK every five hours. Research grants, like the June Hancock Mesothelioma Research Fund, are so important in furthering our understanding of this cruel lung disease. This study could really make a difference to the way we treat people with the disease in the future.”
Spokesperson from June Hancock Mesothelioma Research Fund, Dr Kate Hill said: “The June Hancock Mesothelioma Research Fund is committed to supporting research that will find new ways to provide real benefits for patients. Choosing just one research study to fund from amongst the high quality applications we received was a difficult decision. We are convinced that Dr Marciniak’s work has the potential to make a major contribution to current knowledge about mesothelioma and its treatment.”
Later this year, the British Lung Foundation will launch their annual Action Mesothelioma Day on 2nd July. The day aims to raise awareness of the disease and improve the care and treatment for patients. It will also highlight the risk of asbestos exposure, particularly amongst the at-risk groups e.g. tradespeople.
For more information please contact Tova Turkel tova.turkel@blf-uk.org
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