House of Lords 3rd May 2006
The House of Lords handed out its judgment on 3rd May 2006 in
the case of Barker -v- Corus (formerly Barker -v-Saint Gobain
Pipelines plc) and two related Appeals. These three Appeals raised
two important questions which were left undecided following
Fairchild.
In Fairchild the House of Lords had relaxed the normal rule that
it must be proved on a balance of probabilities that the Defenders'
conduct did cause the damage. Because the state of scientific
knowledge did not enable any claimant, who had been exposed to more
than one significant source of asbestos to satisfy this test, their
Lordships applied an exceptional and less demanding test: that it
was enough to show the Defendants' conduct increased the likelihood
of damage being suffered and may have caused it. The two unanswered
questions were:-
1. What are the limits of this exception to the normal rule?
2. Are all Defendants jointly and severally liable or is the
Defendant only liable for his contribution to the total risk of the
claimant contracting the disease?
Both of these questions were raised by the Appeal in Barker -v-
Corus (UK) plc. Mr Barker died of asbestos related mesothelioma in
1996. During his working career he had three material exposures to
asbestos. For six weeks in 1958 while working for Graessers
Limited. The second between April and October 1962 whilst working
for John Summers Limited (now Corus UK Limited). The third was for
at least three short periods between 1968 and 1975 whilst working
as a self-employed plasterer.
1. Limits of Exception to Normal Rule
Not all the exposure in Barker which could have caused the
disease involved breach of duty to the claimant or was within the
control of the Defendants.
Did this take the case outside the Fairchild exception? Lord
Hoffman who gave the leading judgment said it did not. Lord Hoffman
stated:
"The purpose of the Fairchild exception is to provide a cause of
action against the Defendant who has materially increased the risk
that the claimant will suffer damage and may have caused damage but
cannot be proved to have done so, because it is impossible to show,
on a balance of probability but some other exposure to the same
risk may not have caused it instead".
He went on:
"Therefore it is irrelevant for this purpose whether the
exposure was tortuous or non-tortuous by natural causes or human
agency or by the claimant himself." (para 17).
Lord Hoffman went on to look at the distinction between
Fairchild and Wilsher. At para 24 stated:
"In my opinion it is an essential condition for the operation of
the exception that the impossibility of proving that the Defendant
caused the damage arises out of the existence of another potential
causative agent which operated in the same way".
As an example he said:
"Where the claimant suffers from lung cancer which may be caused
by asbestos or some other carcinogenic matter or smoking it cannot
be proved which is more likely to have been the causative
agent".
In that situation the exception would not apply!
2. Apportionment
Barker and the other two Appeals dealt with the issue of whether
liability was joint and several or several. In both of these cases
a number of the Defendants were insolvent. The Court of Appeal held
that there should be joint and several liability in those
circumstances. However the House of Lords departed from the Court
of Appeal the ultimate decision of the majority is summed up in
para 43 of Lord Hoffman's speech:
"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 only deal in probabilities, the law should accept that position
and attribute liability according to probabilities".
The underlying ratio for the decision although expressed in
different ways by their Lordships appears to be this - if the basis
of liability is the wrongful creation of a risk or chance of
causing the disease, the damage which the Defendants should be
regarded as having caused is the creation or such a risk or chance.
If that is the right way to characterise the damage, then it does
not matter that the viz of such would be indivisible damage.
Chances are infinitely divisible and different people can be
separately responsible to a greater or lesser degree the chances of
an event happening.
In essence in many cases this will be determined on a time
exposed basis but there are clearly arguments as to whether
different types of exposure were proportionate to the overall level
of exposure creating the risk.
Consequences of Barker in Scotland
This is a welcome judgment for insurers who often have the burden
of paying up to 100% of these claims in circumstances where
co-Defendants were uninsured or insolvent. In addition Barker has
emphasised that Fairchild was a very limited exception to an
otherwise straightforward rule. Outwith the Fairchild exception the
Claimant will still have to prove causation on the but for
basis.
Unfortunately in Scotland we have no doubt the Claimants'
solicitors will try to use the dissenting judgment of the Scottish
Law Lord, Lord Rodger of Earlsferry, who opposed the ruling and
said victims should receive full compensation no matter where they
had contracted the disease. In essence he said that the ruling was
contrary to an important principle of Scots Law that liability
should not be apportioned. Strictly speaking the House of Lords
judgments in English cases are not binding in Scotland although
they are normally accepted as such. We simply want to alert you
that those who act for Claimants north of the border will view this
as an unjust judgment which they will probably argue might produce
delays in settlement and indeed understand that Scottish legal
firms may invite separate legislation in Scotland to protect
compensation payments. We would of course argue that when insurers
and employers can now look at their contribution to the relevant
total exposure, to assess the liability, this will in fact speed up
payment of compensation.
Pamela Abernethy