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When Does 'Actionable Damage' Arising From Asbestos Exposure Occur?

Exposure to asbestos can cause cancer decades after the event, but at what point in that long process of developing malignancy can it be said that a victim has suffered damage that entitles them to sue for compensation? As a High Court ruling made plain, that question is crying out for a decisive answer.

The case concerned a 68-year-old man who had developed mesothelioma, a form of lung cancer almost invariably associated with asbestos exposure. There was no dispute that he was exposed to the substance between his early 20s and late 30s whilst working as a maintenance engineer. His life expectancy was measured in months and he was anxious for his damages claim to be concluded as swiftly as possible for the benefit of his wife, who suffered from dementia.

For that reason, he elected not to pursue his claim against the companies for which he worked at the time of exposure – both of which had since been dissolved – but rather to sue their insurers directly. The alternative, much longer procedure would have involved restoring the companies to the register and obtaining a judgment against them before finally proceeding against the insurers.

He asserted that the provisions of the Third Parties (Rights against Insurers) Act 2010 entitled him to make a direct claim against the insurers. The Act, however, only came into force on 1 August 2016 and did not have retrospective effect. In applying to strike out his claim against them, the insurers argued that he had suffered actionable damage prior to that date.

Although he suffered no symptoms prior to March 2020, the insurers asserted that his cancer must have progressed to the stage of angiogenesis – where a tumour develops its own blood supply – about five years before then. That, they argued, amounted to actionable damage occurring before 1 August 2016. On that basis, they contended that his claim against them under the Act was bound to fail.

Ruling on the matter, the Court noted that there is presently no clear legal authority as to whether a symptomless, undetectable, physical change in the body which must inevitably progress to incurable disease, but the timing and existence of which can only be identified in hindsight, marks the point at which actionable damage has occurred. Given that uncertainty, the man's claim under the Act was reasonably arguable and could not be viewed as unwinnable.

On that basis, the Court rejected the insurers' application and gave directions for a speedy trial of the man's claim. It was, the Court observed, a classic example of a case in which evidence should be heard, and full findings of fact made, so that any development of the law would be placed on a sound footing.