Barker v Corus UK Ltd [2006] 2 AC 572

Facts

  • The claimant died from mesothelioma after exposure to asbestos during several employments, including a significant period with the defendant employers, a short period with another employer, and periods of self-employment.
  • The claimant’s estate pursued a claim against the defendant employers, arguing liability under the principle established in Fairchild v Glenhaven Funeral Services [2002] UKHL 22.
  • The dispute centered on whether the defendant employers should be held jointly and severally liable for all damages, or only proportionally liable for their contribution to the risk of contracting mesothelioma.
  • The defendant employers contended that liability should be limited to the proportion of risk to which their conduct contributed.
  • The House of Lords allowed the appeal, holding that damages should be apportioned according to each defendant’s contribution to the risk.

Issues

  1. Whether, under the Fairchild exception, damages in mesothelioma cases should be apportioned in proportion to risk created by each defendant, or imposed jointly and severally.
  2. Whether a defendant can be held fully liable where the claimant’s harm may have also been caused by exposures outside the defendant’s control, including non-tortious or self-induced risks.
  3. How the Fairchild causation principle applies when precise causation is scientifically unascertainable.
  4. Whether subsequent legislation, notably section 3 of the Compensation Act 2006, affects the apportionment of damages established by the case.

Decision

  • The House of Lords held that, where liability arises under the Fairchild exception, damages should be apportioned in accordance with each defendant’s contribution to the risk of harm, not imposed jointly and severally.
  • The Fairchild exception applies to risk created by any source, whether tortious, non-tortious, by another employer, or by the claimant themselves.
  • The Court determined that the damage caused is the material increase in risk, which is divisible and should be allocated proportionally among defendants.
  • The decision departed from traditional joint and several liability, introducing proportional liability based on risk contributed.
  • Parliament responded with section 3 of the Compensation Act 2006, reinstating joint and several liability in mesothelioma claims, thus overriding the proportional approach of Barker v Corus for such cases.

Legal Principles

  • The Fairchild exception allows for liability based on materially increasing the risk of harm when direct causation cannot be scientifically determined.
  • Damages in such cases, other than mesothelioma subject to statutory override, should be allocated proportionally according to each defendant’s contribution to the risk.
  • Section 3 of the Compensation Act 2006 restored joint and several liability for mesothelioma cases, ensuring full compensation for claimants despite multiple potential defendants.
  • The Barker approach to proportional liability continues to apply for asbestos-related diseases other than mesothelioma, as affirmed in Heneghan v Manchester Dry Docks [2016] EWCA Civ 86.

Conclusion

Barker v Corus UK Ltd established that, under the Fairchild exception, employers are liable only for the proportion of risk they contributed to a claimant’s asbestos-related injury, except for mesothelioma claims where statutory intervention restored joint and several liability. The ruling remains significant for asbestos-related diseases outside the Compensation Act 2006’s scope, shaping the allocation of damages in cases with indeterminate causation.

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