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RSA v Generali [2018]: Claims for contribution between insurers are subject to a 2 year limitation period - James Byard, Weightmans

22/08/18. Despite the introduction of legislation several decades earlier to restrict employee exposure to carcinogenic asbestos dust and fibres, claims for mesothelioma continue to present in significant numbers. The HSE Summary Statistics [2017] predict deaths due to mesothelioma will continue at a rate of 2,500 per annum until 2020. This is primarily due to the long latency (commonly in excess of 30 years) between exposure and onset of the symptoms/disease.

Mesothelioma claims have, since the House of Lords decision in Fairchild v Glenhaven Funeral Company [2002] had its own jurisprudence as the Courts have tried to do justice to Claimants within the constraints of both established Tort Law and the present limitations of medical science which cannot (yet) determine in cases of multiple exposure which fibre or period of exposure triggered the mesothelioma.

The Compensation Act [2006] permits a mesothelioma Claimant to gain 100 % satisfaction of damages against a single tortfeasor, even if exposure is over several periods, with several Defendants or in this case over several insurance policy years.

That Defendant or Insurer may in turn seek to recover a contribution from any other contributing Defendant or insurer at the time when exposure took place.

It is against this backdrop that his Honour Judge Rawlings sought to clarify the circumstances in which an Insurer (RSA) who had paid 100 % of the Claimant’s damages and costs could pursue an action to recover a contribution from a second insurer (Generali) who had only been identified several years after settlement had been reached.

The legal argument

The principle argument between the parties was whether the indemnity provided by RSA sounded in “debt” or in “damages” and whether a two year or a six year limitation period was applicable.

If this was “damages”, then The Civil Liability Contributions Act [1978] would engage alongside Section 10 (1)of the Limitation Act [1980] which would mean a strict two year period from when damages were agreed for RSA to issue Proceedings against Generali. That period in the present case had long since expired.

The parties were not helped by the views of both Lord Mance and Lord Sumption who...

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