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Barker v Corus (UK) Plc (formerly Barker v Saint Gobain Pipelines Plc) & Others, House of Lords, 3 May 2006

12 May 2006
The issues

Asbestos exposure – mesothelioma – Fairchild v Glenhaven Funeral Services Ltd – apportionment – whether employer jointly and separately liable – employers jointly and severally liable – basis of apportionment in mesothelioma cases.

The facts

Three cases came before the House of Lords. In Barker, Mr Barker had died of asbestos related mesothelioma. He had had three material exposures to asbestos during his working life. The first was through a company called Graessers Ltd; for six weeks in 1958; the second was between April and October 1962 whilst working for John Summers Ltd, now Corus, and the third was for three short periods between 1968 and 1975 whilst working as a self-employed plasterer. The first two were as a consequence of breaches of duty by the employers and the last was agreed by the parties to have involved failure by Mr Barker to take reasonable care for his own safety.

There were two other cases. In Patterson v Smiths Dock Ltd, Mr Patterson had been during his working life regularly exposed to asbestos in breach of duty by four employers, two of which were insolvent and whose insurers were also insolvent – the exposure in respect of those two companies amounting to 83.22% of the period for which exposure took place. In Murray v British Shipbuilders (Hydrodynamics) Ltd, Mr Murray had been exposed to asbestos in breach of duty by a number of employers. The five who had been joined as defendants accounted for 42.5% of the period of exposure. The others were insolvent and uninsured. The issues for the House of Lords were firstly, what were the limits of the exception in Fairchild; secondly what was the extent of liability.

The decision
  1. McGhee v National Coal Board must be accepted as an approved application of the Fairchild exception. In McGhee there were two possible causes of the pursuer’s dermatitis: the brick dust that had adhered to his skin while he was working on the brick kilns and the dust which continued to adhere to his skin whilst he was on his way home. Both risks had been created by his work at the Coal Board but the exposure whilst working in the kilns was not alleged to involve any breach of duty. The only breach was the failure to provide showers. One source of risk was tortious therefore and the other was not. The Fairchild exception allowed him to recover damages although he could not prove the persistence of dust after he had left work was more likely to have caused the dermatitis than its original presence on his body while he was working.
  2. It should not matter whether the person who caused the non-tortious exposure happened also to have caused the tortious exposure. The purpose of the Fairchild exception was to provide a cause of action against a defendant who had materially increased the risk that the claimant would suffer damage and might have caused that damage but could not be proved to have done so because it was impossible to show on a balance of probability that some other exposure to the same risk may not have caused it instead. For that purpose it was irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency, or by the claimant himself.
  3. Wilshire v Essex Area Health Authoirty (1998 House of Lords) was a case where excessive oxygen which a negligent doctor had allowed to circulate in a baby’s blood had increased the likelihood that he would suffer retrolental fibroplasia and might have caused it. Medical science has not established whether the excessive oxygen or some other possible source of risk was more likely than not to have been the cause. The other source of risk was not created by any breach of duty. The Court of Appeal followed McGhee and found for the claimant. The House of Lords reversed the decision. The distinction lay in the fact that in Wilshire a number of very different causative agents were in play rather than, as in Fairchild, the same causative agent. It was an essential condition for the operation of the exception in Fairchild that the impossibility of proving that the defendant caused the damage arose out of the existence of another potential causative agent which operated in the same way.
  4. Apportionment
    Mesothelioma was an indivisible injury. It was not like asbestosis which could be caused partly by one period of exposure and made worse by another. If ordinary principles were applied there could be no apportionment on the basis that the injury was indivisible. That argument would be unanswerable if the House of Lords in Fairchild had proceeded upon the 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. But only two of the members of the House of Lords had adopted this approach. The other members of the House had made it clear that the creation of a material risk of mesothelioma was sufficient for liability. Consistency of approach would suggest that if the basis of liability was the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused, is the creation of such a risk or chance. The quantification of chances was by no means unusual in the courts.

The attribution of liability according to the relative degree of contribution to the chance of the disease being contracted smoothed the roughness of the justice which a rule of joint and several liability created. A defendant was a wrong-doer and should not be allowed to escape liability altogether but he should not be liable for more than the damage which he caused. Since this was a case in which science could deal only in probabilities, the law should accept that position and attribute liability according to the probabilities. The justification of joint and several liability rule was that if a party caused harm there was no reason why that liability should not be reduced because somebody else also caused the same harm. But when liability was exceptionally imposed because a party might have caused harm the same consideration could not apply and fairness suggested that if more than one person might have been responsible, liability should be divided according to the probability that one or the other caused the harm.

It might be that the most practical method of apportionment would be according to the time exposure for which each defendant was responsible, but allowance might also have to be made for the intensity of the exposure and the type of asbestos to which the claimant had been exposed. Those questions were not before the House of Lords and the parties were urged to devise practical and economic criteria for dealing with them.

Barker v Corus Plc
Appeal allowed to the extent of setting aside the award of damages against Corus and remitting the case to the High Court to re-determine the damages by reference of the proportion of the risk attributable to the breach of duty.

In the other two appeals 
Appeals allowed and the cases would be remitted to the County Court to determine the damages by reference to the share of risk attributable to the breaches of duty.

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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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