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Barker v Saint Gobain Pipelines Plc, Court of Appeal, 5 May 2004

12 May 2004
The issues

Fairchild v Glenhaven Funeral Services – Mesothelioma – Apportionment – Innocent Victim – Whether Employer Liable In Respect Of Deceased Employee Negligently Exposed To Asbestos In Full Or For Only That Portion Of Time For Which Employee Worked And Excluding Periods Of Self Employment

The facts

The deceased, Mr Barker died from mesothelioma at the age of 57 in June 1996. His condition and death resulted from exposure to asbestos dust. Between 1960 and 1968 he had worked at the Shotton Steel Works in Deeside for John Summers and Sons Limited. The Defendant accepted that it was responsible for discharging the liabilities of that company. During that time he was exposed to asbestos dust and it was accepted that such exposure amounted to a breach of duty and that the breach contributed to the risk that the deceased might contract mesothelioma.

There were other periods during the deceased’s working life when he was exposed to asbestos dust – a 6 week period in 1958 and a period from December 1960 when he worked for another firm and a period from December 1968 to 1989 when he was a self-employed plasterer. In respect of each of these three periods there would have been exposure – in respect of the 6 week period in 1958 the exposure was heavy, regular, frequent and of medium duration. In respect of the period for which the Defendant was liable the exposure was regarded as heavy, regular, frequent and of long duration. In respect of the third period there was heavy exposure but for no more than a short period. The Trial Judge awarded £152,000.00 representing 4four fifths of the sum agreed as the Claimant’s damages if the claim was exceeded in full – the reduction of one fifth based on a finding of contributory negligence.

The Defendant appealed.

The decision

Two matters arose for discussion: –

The first being that the causation tests in Fairchild was based on the premise that the Claimant was an innocent victim of the negligent act of various employers, this was not the case where one element of the exposure was a period of self-employment, and secondly that damages ought to be apportioned between the periods of exposure in different employments and periods of self-employment.

In Fairchild a modified test of causation had been applied. The Defendant argued that before the considerations that led to the modification of the general rule could operate it was necessary to establish that the condition resulted from the act of or an omission of some
person other than the Claimant. In brief they argued that “to compensate people who may have injured themselves was to push the boundaries of tort too far”.

At the heart of the decision in Fairchild however were policy questions. Each side of the argument ran a risk that there might be some injustice to one or other of the parties. The law had to take an objective view as to which would lead to greater injustice. The approach taken by the Trial Judge was consistent with the application of policy in Fairchild. The law in Fairchild had imposed liability on those responsible for materially increasing risk which later materialised even though others were also responsible for increasing the risk. If one of those sharing responsibility turned out to be the deceased himself, the law provided a measure but not total relief for a Defendant by means of a reduction of damages through contributory negligence.

The second issue was the issue of apportionment. The injury which the Claimant suffered was an “indivisible injury”. The normal principals were applied and there would therefore be no apportionment. However, the Defendant argued that the modification of the causation rules on policy grounds demanded a modification of the apportionment rules to take the altered approach into account. The Court could however find no compelling reason to depart from the accepted rule in these circumstances. The Defendants were right to emphasise the consequences for those employers who remained solvent and traceable and the fact that inevitably it followed that a diminishing number of employers became liable for the totality of the consequences. From the Defendant’s point of view this suggested that a different approach was needed – however the rule was essentially one for the protection of the person to whom the wrong had been done. Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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