Defending asbestos disease claims in the construction industry

Why are asbestos claims still a problem for constructions firms?

Between the 1950s and early 1980s, most UK engineering and construction businesses will have used or encountered new asbestos materials. This includes electrical engineers, plumbing and gas installers, mechanical fitters, pipe fitters, carpenters and joiners, scaffolders, roofers, painters and decorators, plasterers, bricklayers, vehicle mechanics and general builders. Even after that time, many trades may still have encountered old asbestos materials removed during repair and renovation works.

Tragically, asbestos exposure from decades ago is still leading to often serious and fatal diseases to former tradesmen today. Although ten years is the minimum interval between exposure and disease, the typical gap is more like 40 to 60 years.

As the age of people who worked with asbestos increase, numbers for asbestos disease are expected to start falling this decade. However, the last available figures (for 2020) showed deaths form the fatal asbestos cancer mesothelioma still at their peak of over 2,500 a year.

And there are believed to be similar numbers developing asbestos-related lung cancer each year and a few thousand developing the (normally non-fatal) conditions of asbestosis and diffuse pleural thickening. Even as the figures fall the decrease is expected to be slow – with mesothelioma deaths still projected at over 1,500 by 2030 (about the same as in the mid-00s).

The age of those contracting asbestos disease is also getting older, with two-thirds of victims now aged over 75. But it’s not unusual for younger victims still working to be diagnosed with asbestos-related diseases. Bear in mind a young lad of 17 exposed in, say, 1981 would still only be 59 now. Sadly, asbestos diseases in construction workers in their 40s or even 30s are not unheard of where they were exposed from old asbestos materials being stripped out in the 1990s or 2000s.

Tragically, from the second world war to the early 1980s, the use of asbestos was so prevalent in our construction industries that most such businesses probably exposed someone at the time.

From 1965 onwards, there was some general knowledge out there that even small amounts of asbestos dust could cause the fatal cancer, mesothelioma. However, nearly all small and medium construction firms remained ignorant of these risks, as big asbestos manufacturers like Cape and Turner & Newell did their best to keep the dangers hidden. They aimed to maximize their profits from their asbestos mines for as long as possible, regardless of the serious death and injury they knew this would cause.

Although quite strict regulations were introduced from May 1970, asbestos manufacturers successfully lobbied government against putting any health warnings on asbestos products. Much of the industry still remained in ignorance.

Most of the construction industry did not get serious about the dangers of asbestos until the early 1980s, by which time most of it was either banned or withdrawn from the market (although eg it was still commonly used in vehicle brakes until the mid-1990s). All asbestos imports were then banned from 1999.

The innocent workers who later developed these awful diseases are the real victims here (along with their families). Their employers, who failed to keep up with their legal duties, were clearly at fault. The fact that people did not start dying from asbestos diseases in any significant numbers until later, probably caused some complacency (until the 1970s annual mesothelioma deaths were less than 200). However, the real villains of the piece were the asbestos manufacturing lobby.

Typically, those at a construction firm now faced with an asbestos disease claim will be entirely innocent themselves; a younger generation who may not have even been born when the events took place. In a sense, they too are innocent victims of the crimes of the asbestos manufacturing lobby.

If your business is faced with a historic asbestos disease claim, what should you do about it?

You might assume that this is why your business had paid its liability insurance premiums for so many years: it should be your insurer’s problem and you just need to notify them. That’s quite right, providing you can find the insurers and they haven’t since gone bust.*

The problem is that the insurer liable to cover these claims is not your current insurer, but the insurer at the time your employee was exposed to the disease-causing asbestos – typically between the 1950s and early 1980s.

The problem is that many small and medium-sized construction firms have no record of who their insurers were from so long ago. In a fairer, saner world, companies would have been required to record who their liability insurers were on their annual returns. But, of course, this would not have been in the interests of insurance companies who have always had their own very powerful lobby!

If the firm has no record of its insurers from the time, it is certainly worth asking current insurers if they have records (sometimes they do). If your firm placed insurance through brokers, you should also check with those brokers (assuming they are still around).

There can be other ways of tracing old insurers, but unfortunately these are far from guaranteed to find them. The Association of British Insurers set up the Employer Liability Tracing Office (ELTO), which holds some historic records of employer liability insurers for many businesses. They have a web enquiry form which you can complete to get them to check their database. If they hold those records for your firm, you should get an almost immediate positive response.

If your search comes back negative, you should make a request for an extended search. This involves ELTO contacting all known insurers operating in your sector at the time, asking whether they have records of insuring your firm. It usually takes several weeks before you hear back and most of the time the response is negative. But now and again insurers are found this way.

If you contact us, we would be happy to arrange ELTO insurance searches for you without charge.

If you, or we, can’t quickly find insurers through an ELTO search, then I recommend you contact us to see how we can help to (hopefully) trace your insurers and hold the fort while further enquiries are carried out. If insurers aren’t found, we would then advise and assist you in achieving the best possible outcome for your business in this difficult situation.

Your business might have regular solicitors it uses for other matters, but they will almost certainly not have the knowledge and experience of these highly specialised sorts of claim to assist you effectively. We have had clients wasting thousands doing this before instructing us!

To help trace insurers, we will often involve insurance archaeologists who have insurance industry links that sometimes allow them to unearth insurers when ELTO cannot. If you find the insurers, great. Once they are notified of the claim, we would hand over to them (they usually have their own solicitors).

It’s not unusual for insurers to only cover part of the asbestos exposure period, in which case you would have to cover the rest. The claimant’s claim for compensation and legal costs would be split between your business and the insurers according to how much of the exposure period they were on cover.

In this situation, insurers will sometimes agree to appoint solicitors to represent both you and them in the claim or they may require you to appoint your own solicitors. If they appoint their own solicitors to act, often they will require you to contribute to their legal costs.

Be very careful in this ‘part insurance situation’. If you just leave everything to your insurers and their solicitors, you may end up worse off. Like you, the insurer and their solicitors won’t want to pay any more than they must for the claim. However, we’ve known insurance solicitors to take the wrong direction, causing everyone to pay more than they need to. This might be because of a failure to dispute claims, or parts of claims, where there’s a good defence which they’ve failed to spot. Or because they want to dispute points they are likely to lose, unnecessarily increasing the claimant’s legal costs which you will have to pay for.

The bigger risk for your firm is that the insurer’s solicitors will try to maximize your firm’s share of the claim, to minimize what they pay. We’ve had many cases where, through our specialist knowledge, we’ve been able to significantly increase the insurer’s share of the claim, while correspondingly reducing what our clients pay.

Once a fair apportionment is agreed, we can often step back and reduce our involvement and costs by letting the insurers or their solicitors take the lead.

How we’ve helped businesses with these claims

We believe we are almost uniquely placed to best help businesses faced with an asbestos disease claim for which they can’t find all or any insurers.

We are genuine asbestos disease specialists. I have been dealing with asbestos disease claims for defendants and claimants for 30 years and I am passionate about getting the best results for my client. Over the last 10 years, this has made up most of my work. Although I have a background in defendant insurance, Brachers does not act for liability insurers. However, we have extensive experience of acting for both claimants and business defendants (whereas most lawyers only act for claimants or defendants). I believe this gives us greater insight into what our opponent are thinking and help us get the best outcome for you.

As Brachers never act for insurers in these claims, you can be assured that where an insurer may be involved we will never let them off the hook for fear of upsetting an actual or potential insurance client. This matters because even though your firm may not find its insurers, often an insurer will be involved somewhere in these cases, e.g. as insurer for another employer in the claim or where we’ve found your insurers for only part of the exposure period.

I have sometimes helped clients find insurers who have covered the claim in full while holding the fort with the claimant’s solicitors. In several cases, I have been able to persuade claimant solicitors or insurers to drop the entire claim against my client. In many other cases I have been able to significantly reduce the damages and costs paid to the claimant and/or secure a much larger contribution from part insurers or insurers for other employers. Either way, I have often saved my clients tens of thousands of pounds, or even six-figure sums.

*This has happened with many insurance companies e.g. with Builder’s Accident and Iron Trades. In such cases insured firms will have to pay all claims themselves but if it’s an EL policy they can then get a contribution back from the Financial Services Compensation Scheme – 90% up to 1971 and 100% since

This content is correct at time of publication