PIBULJ Articles

BARKER V CORUS (UK) PLC
A major development on apportionment of liability in asbestos cases

The previous acme of judicial learning in relation to causation of asbestos claims was set out in the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL, [2002] IRLR 533.  In that case the House decided, exceptionally, that a worker who had contracted mesothelioma after being wrongfully exposed to significant quantities of asbestos dust at different times by more than one employer or occupier of premises could sue any of them, despite being unable to prove which exposure had caused the disease.  Liability having been established, the defendants would be jointly and severally liable for all the damage caused, whether or not a number of other former employers (who might no longer be solvent) exposed the claimant to a much greater risk of injury than did the solvent defendant. 

In Barker v Corus (UK) PLC [2006] UKHL 20 the House considered two important questions which were left undecided by Fairchild:

1. What are the limits to the Fairchild exception?;

2. What is the extent of liability for identified defendants?

The limits to the exception

In the case of Mr. Barker, one of the periods when he had been exposed to asbestos was when he had been working as a self employed plasterer and failed to take sufficient care for his own safety.  Thus, unlike Fairchild, not all the exposures which could have caused the disease involved breaches of duty to the claimant or were within the control of the defendant.  It was argued by the defendant that this took the case outside of the Fairchild exception.

The short answer is that the House found that it was not necessary for all exposure to asbestos to be as a result of a tortious act for the exception to operate.  In Fairchild it had previously been accepted that liability could be established where another source of injury was a similar, but lawful, act or omission of the same defendant.1  In Barker it was decided that, if it is accepted that the exception can operate even though not all the potential causes of damage were tortious, there was no logic in requiring that the non-tortious source of risk should have been created by someone who was also a tortfeasor.2 Consequently, it was irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself.3

In fact, the appropriate limit to the Fairchild exception is that it is an essential condition that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way.4 

The extent of liability for an identified defendant
The issue in Barker’s case was whether the defendant was liable, jointly and severally with any other defendants, for all the damage consequent upon the contraction of mesothelioma by the claimant or whether he was liable only for an aliquot share, apportioned according to the share of the risk created by his breach of duty.  At first instance and in the Court of Appeal it had been held that the defendant was jointly and severally liable.  This was because it was considered that the damage inflicted on the claimant was the contraction of the disease mesothelioma and that that was an “indivisible injury”.  Unlike asbestosis or other diseases that are made worse by further exposure, mesothelioma is likely to have been caused by a single exposure.  Consequently, the contraction of mesothelioma is an indivisible injury whereby the normal rules would suggest a finding of joint and several liability.5  The justification for the joint and several liability rule has been that, if you caused harm, there is no reason why your liability should be reduced because someone else also caused you harm.  The effect of this ruling has been significant in cases where exposure occurred thirty or forty years ago.  Those few employers that was still in existence and solvent were having to pay the totality of damages when their own contribution to the overall exposure of the claimant may have been minimal compared to other non-solvent employers.

This finding of joint and several liability has been overturned by a majority of the House (Lord Rodger of Earlsferry dissenting).  Lord Hoffman argued that, whilst the disease of mesothelioma was undoubtedly indivisible, Fairchild had not proceeded on the legal fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease.  Instead, it was sufficient for the purpose of establishing liability that the defendant had created a material risk of mesothelioma.   If the creation of a risk or chance of causing the disease was the basis of liability, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance.6

The same result was achieved by Baroness Hale but by a different route.  She disagreed that the damage was the risk of contracting mesothelioma but rather the disease itself (as did Lord Rodgers).  However, she took the view that there was no reason why the former rules of causation in cases of a single indivisible injury should not develop as the rules relating to liability have also developed.  For her this is a policy question.  One element in making that choice is whether there exists a sensible basis for apportionment of liability.  Another element is whether this would strike the right balance of fairness between claimant and defendant.7  She concludes by stating that, “There is no magic in the indivisibility of the harm.  It is not being said that each has caused or materially contributed to the harm.  It can only be said that each has materially contributed to the risk of harm.  The harm may not be indivisible but the material contribution to the risk can be divided.  There exists a sensible basis for doing so.”

The effect of this ruling is to limit the exposure of solvent former employers to compensate claimants for only that portion of the total exposure for which they were responsible.  The exact mechanism for determining the degree of exposure has been left up to claimants and the insurance industry to work out for themselves.  However, in the absence of evidence of intensity of exposure it was suggested that length of exposure would be the obvious starting point.