Barker v Corus, House of Lords, 3 May 2006
Subject: Mesothelioma Claims
Issue
Where several employers have negligently exposed a claimant to asbestos dust and the claimant has subsequently developed mesothelioma so that each employer is potentially liable under the Fairchild decision, can the claimant recover 100% of his damages from any one of the negligent employers or is each employer liable only for his contribution to the development of the disease.
Summary
The claimant cannot recover 100% of his damages from any one of the negligent employers. Each employer is separately liable to the extent that he contributed to the risk of mesothelioma developing. Contribution to risk will generally be determined by the period of negligent exposure. Each employer’s liability for the damages will be restricted in the same proportion as that employer’s period of negligent exposure bears to the claimant’s total exposure to asbestos dust.
Significance
This decision overturns the view, widely held following the Fairchild decision, that an employee who developed mesothelioma could recover damages in full from any employer who had negligently exposed him to asbestos dust. In future each negligent employer will only be liable for his proportionate share of the damages.
Background
In Fairchild v Glenhaven (June 2002) the House of Lords used a relaxed standard of proof to allow mesothelioma sufferers to recover damages in cases where there were several negligent employers and it was not possible to prove on balance of probabilities which employer actually caused the mesothelioma, because the precise medical development of mesothelioma is not known. The Lords held that in these circumstances the claimant, to succeed against an employer, need only show that such employer had materially contributed to the risk that mesothelioma would develop.
The Fairchild decision dealt with the standard of proof in mesothelioma cases, holding that each employer who had materially contributed to the risk of mesothelioma developing was liable, but it did not deal with the question of how damages might be apportioned among negligent employers, because that was not an issue in the case.
The doctrine of concurrent tortfeasors means that where the negligent acts of several parties combine to cause the same injury then the injured party may recover 100% of the damages from any one of the negligent parties.
The Decision
The Lords identified two issues to be decided: what are the limits of the Fairchild exception and to what extent can claims made under the Fairchild decision be apportioned among negligent employers.
Limits of Fairchild
On this issue the Lords held that the Fairchild lower standard of proof only applied where 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 so that the effects of each cannot be disentangled. It does not apply, for example, where lung cancer may have been caused by asbestos or smoking.
Nor does it apply in cases like Wilsher v Essex Area Health Authority (1988) where medical negligence was only one of several different potential causes of the injury. In these circumstances the claimant still must prove on the balance of probabilities that the negligence caused the injury
Apportionment
The Lords held that in Fairchild the liability of the defendants was not based on a finding that they had in fact caused mesothelioma. The problem in Fairchild arose because it was impossible to prove this. The defendants were liable because their negligent exposure of the employees to asbestos dust had contributed to the risk that mesothelioma would develop.
The normal doctrine of joint liability of concurrent tortfeasors, where each tortfeasor contributing to the same injury is 100% liable to the claimant, is fair where the tortfeasor has in fact contributed to causing the injury.
It is not fair where, as in cases of mesothelioma, there is no finding of factual causation, the tortfeasor being liable because he has contributed to the risk of the injury. He may in fact have caused nothing.
Mesothelioma is an indivisible disease in the sense that its severity is not determined by the amount of asbestos ingested by the victim and so concurrent tortfeasors could be liable if there was evidence of factual causation. The Fairchild exception however, only applies where there is insufficient evidence of factual causation and so the normal rule does not apply. Liability under the Fairchild exception is based on a combination of a) contribution to the risk of injury and b) that the risk of the disease developing is easily divisible.
It follows that in respect of mesothelioma claims a negligent employer should only be liable to the extent that he has contributed to the risk that mesothelioma will develop. This will usually be his percentage share of the total asbestos exposure, possibly taking account of severity of exposure at different times.
The Court emphasised that creating risk of disease is not itself actionable. A person negligently exposed to asbestos dust but who has not developed mesothelioma cannot claim damages for the increased risk that he will develop the disease. His right of action arises only when the disease develops.
Brendan O'Keeffe
Claims Counsel, Swiss Re UK
