On 3 May 2006 the House of Lords announced its decision in the cases of Barker v Corus (UK) plc; Murray v British Shipbuilders (Hydrodynamics) Ltd and others; and Patterson v Smiths Dock Ltd and others [2006] UKHL 20 which overturned the decision of the Court of Appeal in these three fatal mesothelioma claims.
The question that was considered in these appeal cases was whether the defendants should be held responsible for all of the damage suffered by the deceased’s estate and dependants as a result of the development of the condition mesothelioma from occupational exposure to asbestos dust or whether each defendant should only be held responsible for its aliquot contribution to the materialised risk of contraction of mesothelioma.
It was held that negligent employers will not be liable to pay 100% compensation if other culpable employers cannot be traced; or have gone out of business and their insurers cannot be found. In such cases damages should be apportioned accordingly. To fully consider this judgment it is important to consider the history of mesothelioma claims.
Looking back to the landmark House of Lords decision of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 the question at issue was whether an employer could be held liable to an individual who had been exposed to asbestos dust during his employment and subsequently contracted mesothelioma, even when the standard causal requirements which require to be satisfied for liability in tort have not been fulfilled. The medical evidence in the Fairchild case was that the inhalation of a single asbestos fibre could result in the development of mesothelioma over a period of 20 to 50 years post exposure. The Court of Appeal held that if the sufferer was unable to identify where and when he had inhaled that particular asbestos fibre then he was not entitled to recover damages from any of his former employers.
The Fairchild problem arose because the victim has been exposed to asbestos dust while working for a number of employers and, in the present state of scientific knowledge, it is impossible to say which employer was responsible for the fibre which led to the development of mesothelioma. So, if the usual test for proof of causation is applied, the claimant would be unable to recover damages.
The House of Lords stated however in Fairchild that that would be an unfair result. It held that where a worker has contracted mesothelioma as a result of occupational exposure to asbestos dust at different times, by more than one employer, he could sue any of the employers, notwithstanding that he could not prove which exposure had caused the disease. In conclusion, their Lordships considered that the injustice of denying an occupationally injured employee a remedy outweighed any unfairness to successive employers who fail to protect the employee from such injury, but who individually could not be proved to have caused the damage complained of. Interestingly, what was of note in the Fairchild judgement was that no argument was addressed to the House of Lords on apportionment, nor was it asserted there should be any apportionment of damages on the basis that a number of employers were in breach of statutory duty and had contributed to the disease and only a portion of damages should be recovered against each Defendant.
The Court therefore did not have an opportunity to comment on Holtby v Brigham & Cowan ( Hull ) Ltd [2000] PIQR Q 293. The Holtby case decided that each defendant is liable only for the extent to which it contributed to the claimant’s condition, where a claimant is suffering from a divisible condition such as vibration white finger, industrial deafness or asbestosis. For a period of time following the decision in Fairchild, there was some controversy as to whether Fairchild removed the possibility of arguing that damages should be reduced proportionately for exposure to asbestos in mesothelioma claims by the defendants who have not been sued. However, the decision at first instance in the case of Barker v St Gobain Pipelines (which case forms part of this appeal to the House of Lords as Barker v Corus (UK) plc) was that damages cannot be apportioned in mesothelioma cases and that the decision in the case of Holtby does not apply to mesothelioma claims. Mesothelioma has been considered as a non-divisible condition.
The Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. However, the question that was addressed in these appeal cases was whether fairness requires that a claimant should recover in full from any defendant liable even beyond the extent to which that defendant could be seen to have contributed to the claimant’s condition.
The case was taken to the House of Lords on 13 March 2006 by Corus UK Ltd and its insurers. Essentially, in practical terms, victims of mesothelioma will not be able to obtain full compensation through the courts unless they sue all of their former employers who exposed them to asbestos. The basic effect of the decision is that the defendant who was a wrongdoer should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he had caused and liability should be attributed accordingly. In other words, the defendants are only to be held severally liable and not jointly and severally liable and so an apportionment exercise will require to be carried out in these claims as in industrial deafness, vibration white finger and asbestosis claims.
It is also worth noting that deductions to any awards are possible for periods where the claimant negligently contributed to his own exposure to asbestos. This issue arose in relation to the estate of Mr Barker’s claim. Mr Barker had been exposed to asbestos dust during his employment as a self-employed plasterer. It was held that a 20% reduction should be applied to take account of Mr Barker’s contributory negligence while he was self-employed.
Prior to this decision in Barker on the basis of the ‘Fairchild exception’, claimants only had to establish liability against one employer to recover the full 100% of his damages from them. The effect of this decision is that each employer will only be responsible for the extent of their negligence, that is defendants will be held severally liable only. In other words, a Holtby-type discount can now be applied to mesothemlioma claims.
Contact
Joanne Farrell
(Information posted in July 2006 and may not have been updated at time of reading).