Barker v. Corus (UK) Ltd

[2006] UKHL 20, [2006] 2 WLR 1027,[2006] 2 AC 572; [2006] All ER (D) 23 (May); [2006] NLJR 796
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This case was brought as a test case to examine the scope of an exception in tort law causation rules. In Fairchild v. Glenhaven Funeral Services Ltd [2002] UKHL 22 (Fairchild), the House of Lords created an exception in to the normal law of causation in torts for workers who had been exposed to asbestos dust by multiple employers and had subsequently contracted mesothelioma. Ordinarily, it was not enough that a plaintiff show that an employer may have caused the eventual damage by increasing its likelihood. It needed to be shown that the defendant did cause the damage on the balance of probabilities. In other words, causation was all-or-nothing, rather than proportionate.

The Fairchild exception declared that because of the nature of asbestos illnesses, in the interest of justice, mesothelioma cases required a “less demanding test for the necessary causal link between the defendant’s conduct and the damage” (para. 1). Mesothelioma was an “indivisible injury”; it was not “partly caused by one period of exposure and made worse by another,” but rather was a likely outcome of each exposure, only one of them eventually causing the disease (para.26). Without knowing which exposure led to the eventual disease, it was impossible for victims to obtain compensation. Therefore, the House of Lords had held that Fairchild “could sue any of [the employers], notwithstanding that he could not prove which exposure had caused the disease” (para. 1). The employers were considered joint and severally liable.

This appeal consolidated three cases (Barker v. Corus (UK) Plc., Smiths Dock Ltd v. Patterson, Murray v. BS Hydrodynamics Ltd) that dealt with mesothelioma and raised further questions about the Fairchild exception. In Barker, some of the exposure to asbestos took place when the plaintiff was self-employed, meaning that “not all the exposures which could have caused the disease involved breaches of duty to the claimant or were within the control of a defendant.” The other two cases fitted within the exception, but the companies under which the majority of the exposure to asbestos took place were insolvent, placing a potentially unfair burden on other employers if they were found jointly and severally liable. The district and appeals courts found Barker v. Corus to fit within the exception, and held the defendant jointly and severally liable minus a percentage for contributory negligence. The other cases followed the Barker decision and also found the defendants jointly and severally liable. All three sets of defendants appealed to the House of Lords.

The Court decided that liability in mesothelioma cases should be awarded on the basis of apportionment, where each defendant was responsible for a share in proportion to their contribution to the risk of harm, rather than joint and several liability, where each defendant was responsible for the whole.

In deciding this, the Court was greatly concerned with defining the applicability of the Fairchild exception and the nature of the exception. It considered the exception important in mesothelioma cases, as if not for the exception there would often have not been enough evidence to establish the causation required to award damages, leaving harmed victims uncompensated for their loss. Yet, as evidenced by the present appeals, joint and several liability also made defendants more vulnerable to liability for harm they possibly might not have caused, and it was important to keep the exception limited in scope, especially in cases where liability could not be redistributed equitably due to the insolvency of some of the potential tortfeasors.

The Court acknowledged that the defendants may not have caused the plaintiff’s injury at all. They instead had liability imposed on them because of policy and social values: it was considered fair “that they should make at least some contribution to redressing the harm that may have flowed from their wrongdoing” (para. 127). The Court further pointed out that generally, increased risks were not treated as injuries in tort law, and that an exceptional rule imposing damages to ensure fairness to the plaintiff should also take into account fairness for the defendant.

As such, the Court concluded that the harshness of the joint and several liability approach favored modifying the exception so that the defendants would make a contribution to damages that was proportional to the contribution they had made to the risk of harm, rather than each being responsible for the whole. The balance of concerns in deciding for apportionment meant although the mesothelioma victim might be relatively undercompensated, the compensation gained would be more reasonable, fair, and entitled despite the inability to prove the damage and cause. This decision had the benefit of making the Barker case coherent with the exception as well, as contributory negligence would be taken into account as part of apportionment.

The other cases were remanded to the lower courts, with the damages to be apportioned on the facts.

“In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.” Para. 43.

“I would, therefore, hold that the extent of the liability of each defendant in a Fairchild type of case, where it cannot be shown which defendant's breach of duty caused the damage but where each defendant, in breach of duty, has exposed the claimant to a significant risk of the eventual damage, should be liability commensurate with the degree of risk for which that defendant was responsible. Ascertainment of the degree of risk would be an issue of fact to be determined by the trial judge.” Para. 62.

“On the one hand, the defendants are, by definition, in breach of their duties towards the claimants or the deceased. But then so are many employers, occupiers or other defendants who nevertheless escape liability altogether because it cannot be shown that their breach of duty caused the harm suffered by the claimant. For as long as we have rules of causation, some negligent (or otherwise duty-breaking) defendants will escape liability. The law of tort is not (generally) there to punish people for their behaviour. It is there to make them pay for the damage they have done. These Fairchild defendants may not have caused any harm at all. They are being made liable because it is thought fair that they should make at least some contribution to redressing the harm that may have flowed from their wrongdoing. It seems to me most fair that the contribution they should make is in proportion to the contribution they have made to the risk of that harm occurring.” Para. 127.

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