The Asbestos Victims Support Groups Forum has supported the production of the All-Party pamphlet calling for an insurance fund of last resort to pay compensation to asbestos victims where the negligent employer is no longer trading and the employer’s liability insurance cannot be traced.
For further information......All Party Group
Currently, injured workers only have partial insurance cover. If an employer fails to take out employers’ liability insurance an injured worker has no redress and asbestos victims who cannot trace an EL insurer for the period when exposure to asbestos occurred many years ago also have no redress.
Motor accident victims have full protection. Injured motor accident victims are covered by the Motor Insurers’ Bureau (MIB). Where one party has no insurance they are paid from the guarantee fund, the MIB. Workers do not have recourse to an EL insurance guarantee fund.
Following the revocation of Reg. 4(4) of the Employers’ Liability (Compulsory Insurance) Regulations 1998 requiring employers to retain EL insurance certificates for 40 years we have called for replacement regulations to provide a comprehensive solution to the above problems which Reg 4(4) never achieved. But ministers have given MPs false reassurances that all is well for asbestos victims.
Ministers have mistakenly reassured MPs regarding asbestos victims’ compensation by saying that “ABI data shows that 98% of potential EL claimants are currently able to locate an employer or insurer to claim against”. This is a red herring: the figure 98% relates to current accident claimants who will almost always find a current employer or insurer to claim against, this is not the case for asbestos victims who fail to trace EL insurers who were on risk for asbestos exposure many years ago.
EL insurance 99.5% compliance but untraceable. Holding EL insurance has been compulsory since 1972. The HSE state that there is 99.5% compliance with ELCI regulations. Yet, the Review Statement for the ABI Tracing Code for the period 1 November 2005—31 October 2006 shows that the success rate for pre-72 enquiries was only 15% (268 out of 1809 enquiries) and the success rate for post-1972 was only 33% (1583 out of 4849 enquiries). Overall, the success rate in tracing insurers was only 28%. Yes, there was insurance, but it is untraceable.
Insurers are escaping liability for EL insurance they wrote over many decades because there has been no requirement to register EL insurance. Insurance records are now lost in hundreds of cases, even where companies have recently been dissolved. An example:
Mr. L suffers from mesothelioma. He was exposed to asbestos while working for Tomlinsons, a company which was dissolved as late as 2004. His solicitor was able to trace the company’s public liability insurers but was unable to trace the company’s EL insurers. It is accepted by all concerned that the company held EL insurance: the policy simply cannot be found. Who carries the burden for an untraceable policy - Mr. L. does!
Government stands in for insurers by paying small lump sum payments under the Pneumoconiosis etc.(Workers Compensation) Act 1979 and the 2008 Diffuse Mesothelioma Scheme. Insurers escape liability for insurance they wrote and the tax payer picks up the tab.
We are calling for an Employers Liability Insurance Bureau, a guarantee fund for workers suffering injury and occupational disease, just like the MIB for motor traffic victims. ALL asbestos victims should be paid compensation where judgment is obtained from a guarantee fund paid for by insurers.
Motor Insurance
· It is a criminal offence under section 143 Road Traffic Act 1988 to drive a motor vehicle without insurance.
· The Motor Insurance Bureau (MIB) meets the liability to pay compensation for claims for personal injury under the terms of the MIB Uninsured Drivers Agreement and the Untraced Drivers Agreement.
· The MIB guarantees that people injured by negligent drivers obtain common law damages for personal injury or death caused by the negligence of uninsured and untraced drivers.
Employers' Liability Insurance
· It is a criminal offence under section 5 of the Employers Liability (Compulsory Insurance) Act 1969 for employers to fail to insure in respect of employees’ bodily injury and disease.**
· When an employer goes out of business and was either uninsured or the insurer cannot be traced there is no fund of last resort to meet the employer’s liability to compensate the injured worker.
· The problem of uninsured employers and untraced insurers is a particular problem for long tail disease claims such as mesothelioma where as many as one in ten may fail because the employer no longer exists and insurers cannot be identified.
**Prior to 1969, no action was taken to compel employers to take out EL insurance because government argued that almost all employers held EL insurance.
Important Advantages of an ELIB
· An ELIB incurs no government costs and would ensure 100% recovery in every case where judgment is obtained and would generate an income stream from which government can fund lump sum payments.
· Extra revenue from recovery would allow the government to cease recovering payments from the T&N Fund which only pays T&N claimants a small percentage of their full entitlement to compensation
· The outcome of the insurers “trigger issue”, which has the potential to devastate compensation for asbestos victims, would have no effect and would simply become an issue between insurers.
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