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

Workers contracted mesothelioma after being exposed to asbestos by multiple employers. The House of Lords held that defendants liable under the Fairchild exception should bear only several liability proportionate to their contribution to the risk, not joint and several liability for the whole damage.

Facts

These three conjoined appeals concerned workers who contracted mesothelioma after exposure to asbestos dust during employment with multiple employers. In Barker’s case, Mr Barker was exposed to asbestos during employment with Graessers Ltd (1958), John Summers Ltd/Corus (1962), and while self-employed as a plasterer (1968-1975). In Murray and Patterson, the deceased workers had been exposed by multiple employers over their working lives, many of whom were now insolvent or uninsured.

Issues

First Issue

Whether the Fairchild exception applies when not all exposures to asbestos involved breaches of duty, particularly where the claimant was himself responsible for some exposure.

Second Issue

Whether liability under the Fairchild exception is joint and several (each defendant liable for the whole damage) or several only (each defendant liable only for their proportionate contribution to the risk).

Judgment

The House of Lords held that the Fairchild exception applies even where some exposures were not tortious, including self-exposure by the claimant. The key reasoning was that once it is accepted that the exception can operate where not all potential causes were tortious (as in McGhee), there is no logic in requiring that non-tortious exposure be created by someone who was also a tortfeasor.

On the crucial issue of apportionment, the majority held that liability should be several, not joint and several. Lord Hoffmann reasoned that since liability under Fairchild is based on materially increasing the risk of disease rather than actually causing it, the damage should be characterised as the creation of risk. Since risks are divisible, each defendant should be liable only for their aliquot contribution to the total materialised risk.

Lord Rodger dissented on apportionment, arguing that the reasoning in McGhee and Fairchild established that defendants were liable for materially contributing to the disease itself, not merely the risk. He considered the majority approach would create unfair inconsistencies in the law.

Implications

This decision significantly modified the effect of Fairchild by limiting each defendant’s liability to their proportionate share of the risk they created. This shifted the risk of insolvent or uninsured tortfeasors from other defendants to claimants, who may recover only a fraction of their damages if some responsible parties cannot be pursued. The decision also confirmed that Fairchild applies only to single-agent cases where the mechanism of causation is the same, distinguishing it from multi-agent cases like Wilsher. The approach establishes that contributions to risk can be quantified based on duration and intensity of exposure, with different types of asbestos potentially relevant to assessment.

Verdict: Appeals allowed in part. Cases remitted to determine damages by reference to the proportion of risk attributable to each defendant's breach of duty. Liability is several only, not joint and several.

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