General Liability Insurance After The EL Trigger Litigation -- What Is The Current State of Policy Attachment in Injury Cases?

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On 28 March 2012, the UK Supreme Court handed down its eagerly anticipated judgment in Durham v BAI, otherwise known as the “EL Trigger Litigation”. Much has already been written about the decision itself. In this bulletin we look at the decision in its wider context of injury cases generally, and attempt to look into the future.

The facts are by now familiar: personal representatives of employees who contracted mesothelioma after being exposed to asbestos, sought compensation from their former employers. The dispute pitted the existing Employers’ Liability (EL) insurance market against the run off market, which deviated from the historic assumption that EL policies would be triggered by reference to the dates of exposure. The Supreme Court restored the traditional position and held that “sustained” and “contracted” is synonymous with “caused”, i.e. liability would attach under the EL policies at the date when the illness was caused, upon exposure to asbestos fibres, not the subsequent date on which the disease had manifested itself.

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