PI Brief Update

05 June 2006 - PI Practitioner

MESOTHELIOMA: CAUSATION AND MULTIPLE DEFENDANTS
Barker v. Corus (UK) plc [2006] UKHL 20
A person who contracted mesothelioma after being exposed to asbestos fibres by multiple defendants has the benefit of an exception to the usual rules of causation. He could sue any of the defendants, even though he could not prove which exposure had resulted in the disease. The defendant would be liable for the wrongful creation of the risk of contracting the disease. Because the claimant’s damage was the risk itself, the defendant would be liable for the degree of risk it had created. By quantifying the chances of the claimant’s disease being caused by that defendant, the attribution can be quantified. Any particular defendant would be liable for a proportion of the disease equal to its relative contribution to the chance of the claimant suffering the disease.

EMPLOYER’S LIABILITY FOR DEPRESSION
Daw v. Intel Corporation [2006] EWHC 1097 (QB)
An employer is liable for an employee’s depression if there was a real risk which the employer should properly have foreseen and should properly have averted: Garrett v. Camden LBC [2001] All ER (D) 202. In the present case, the defendant was found liable for the claimant’s depression. She had tried to inform the defendant of her deteriorating mental state, and although her comments were not entirely clear, the defendant should have asked her to elaborate. She created the document with her comments immediately after being found in tears by her manager, at his request. In that context, the defendant should have ensured it understood everything she had written, even if that meant making enquiries.

Had the defendant done so, it would have been able to remedy the claimant’s situation by substantially reducing her workload. It was therefore liable for her illness, subject to a one-third reduction to reflect the chance that she would have suffered debilitating depression in any event.