Barker v Corus (UK) Plc [2006] UKHL 20 (3 May 2006)

An employee developed mesothelioma from asbestos exposure by multiple employers, one of whom was insolvent. The House of Lords held that solvent employers were not jointly and severally liable but only for their proportionate share of the risk created.

Facts

The claimant, Mr Barker, died from mesothelioma, a cancer caused by exposure to asbestos. He had been exposed to asbestos during three distinct periods in his working life. He worked for a company for over eight years, which later became insolvent. He was then self-employed for a period, during which he was also exposed. Finally, he worked for the defendant, Corus UK Ltd, for a short period of under six weeks, where he was also negligently exposed to asbestos. Due to the insolvency of the first employer, the claimant sought to recover full compensation from the solvent defendant, Corus.

Issues

The central legal issue was the extent of a defendant’s liability in a mesothelioma case where the claimant had been exposed to asbestos by multiple negligent parties. Following the House of Lords’ decision in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, which established that a defendant who materially increased the risk of the claimant developing mesothelioma was liable, the question arose as to the nature of that liability. Was each responsible employer jointly and severally liable for the full extent of the damage, or was their liability to be apportioned according to their contribution to the total risk of the claimant contracting the disease?

Judgment

The House of Lords allowed the appeal, overturning the Court of Appeal’s decision. Their Lordships held by a majority that liability should be apportioned between the defendants according to their relative contribution to the risk of the claimant developing mesothelioma. A defendant would only be liable for a proportion of the damages, not the entirety.

Reasoning of the Court

Lord Hoffmann, giving the leading speech, distinguished the situation from cases of divisible and indivisible injury. He reasoned that the ‘Fairchild exception’ was a departure from the traditional ‘but for’ test of causation. The basis for liability under this exception was not that the defendant had caused the disease, but that they had wrongfully increased the risk of the claimant contracting it. Therefore, the ‘damage’ for which the defendant was liable was the creation of that risk.

In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would be the fairest and most rational allocation of responsibility for the wrongful conduct of A and B.

Lord Hoffmann stated that attributing full liability to one of several defendants would be unfair and an over-extension of the principle established in Fairchild:

The Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. But the unattractiveness of the defendant’s position is not a sufficient reason for going to the opposite extreme and making a defendant liable for more than the damage which he caused.

Lord Scott, while reaching the same conclusion on apportionment, differed in his reasoning. He believed the damage was the disease itself, not the risk. However, he concluded that justice required that where causation is established on a ‘material increase in risk’ basis, the liability should also be risk-based and therefore apportionable.

Baroness Hale emphasised that the Fairchild exception was created to achieve justice for the claimant, but that this must be balanced with fairness to the defendant. Joint and several liability, she argued, would make one party liable for harm they did not cause, which was not a just outcome in these specific circumstances.

Implications

The decision in Barker v Corus represented a significant, albeit short-lived, development in the law of tort. It created a major exception to the common law principle of joint and several liability for indivisible injuries, placing the risk of a co-defendant’s insolvency on the claimant rather than the remaining solvent defendants. This was highly controversial and was viewed as a victory for defendants and their insurers at the expense of victims of asbestos-related diseases. The decision prompted a swift legislative response from Parliament, which enacted section 3 of the Compensation Act 2006. This Act expressly reversed the effect of the Barker decision for mesothelioma claims, restoring the principle of joint and several liability in such cases.

Verdict: The appeal was allowed. The defendant, Corus, was held to be liable only for a proportion of the damages, calculated according to its relative contribution to the deceased’s risk of contracting mesothelioma.

Source: Barker v. Corus (UK) Plc [2006] UKHL 20 (3 May 2006)