The case of Barker v Corus (UK) plc [2006] UKHL 20 is a landmark decision by the House of Lords that redefined the approach to causation and liability in industrial disease cases, particularly mesothelioma claims. This case builds upon and revisits the principles laid down in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, where the court addressed issues of causation in cases involving multiple potential tortfeasors.
The central questions in Barker were whether solvent employers should bear the liability for the proportion of harm caused by insolvent employers and how damages should be apportioned when the claimant’s own actions may have contributed to their injury. The case marked a significant shift in the legal treatment of liability in mesothelioma cases by introducing the principle of proportional liability in place of joint and several liability, thereby influencing future claims involving industrial diseases.
Facts of Barker v Corus
The claimants in Barker had contracted mesothelioma, a fatal disease caused by exposure to asbestos. The exposure occurred over multiple periods of employment with different employers. In this particular case, the deceased claimant was exposed to asbestos:
- During an eight-year period of employment with the defendant (Corus UK).
- During a six-week period with another employer.
- On three occasions when the claimant was self-employed and potentially exposed himself to asbestos.
Mesothelioma is characterised by its long latency period, which can range from 25 to 50 years. This makes it nearly impossible to pinpoint the exact source of the exposure that caused the disease. All of the claimant’s employers had negligently exposed him to asbestos, thereby increasing the risk of mesothelioma.
The Court of Appeal had earlier ruled that the principle established in Fairchild applied, allowing claimants to recover damages even if they could not prove which specific employer caused the harm. However, the damages were reduced to account for the possibility that the claimant’s own actions contributed to the risk.
Legal Issues
The Barker v Corus case raised two key legal issues:
- Causation: Should the Fairchild principle—which permits liability for materially increasing the risk of harm—apply when the claimant’s own actions may have contributed to the injury?
- Apportionment of Damages: How should damages be calculated in cases where:
- There are multiple tortfeasors, some of whom may be insolvent.
- The claimant may have been partially responsible for their own exposure to the harmful substance.
Barker v Corus Judgment
The House of Lords delivered a split decision, allowing the appeal and holding that:
- Application of the Fairchild Principle: The Fairchild principle applies to cases where a defendant’s negligence has materially increased the risk of harm. The claimant need not establish which specific act of negligence caused the disease, as mesothelioma’s long latency period makes this impossible.
- Proportional Liability: The House of Lords in Barker v Corus departed from the joint and several liability approach established in Fairchild. Instead, it held that each defendant should be liable only for the proportion of the harm they were responsible for creating. Lord Hoffmann emphasised that liability should reflect the relative contribution of each party to the risk of harm.
- Damages and the Claimant’s Negligence: Damages should be reduced to account for the claimant’s own contribution to the risk of harm. The assessment of damages should consider the likelihood that each defendant’s negligence caused the harm relative to other potential causes, including the claimant’s own actions.
Key Reasoning
Lord Hoffmann’s reasoning in Barker versus Corus highlighted the importance of fairness and proportionality in attributing liability:
- Fairness in Liability: Joint and several liability may lead to injustice by requiring a single solvent defendant to bear the entire burden of damages when other tortfeasors are insolvent or absent. Proportional liability mitigates this unfairness by ensuring each party’s responsibility is limited to their contribution to the risk.
- Scientific Uncertainty: In cases where science can only deal in probabilities, the law must accept proportional liability as a fair solution. Since mesothelioma claims rely on the concept of increased risk rather than direct causation, the law should reflect this uncertainty in its approach to liability.
- Claimant’s Contribution: The claimant’s own negligence in exposing themselves to asbestos should be considered during the damages assessment stage rather than at the liability stage. This ensures a balanced approach that accounts for all contributing factors.
Conclusion
Barker v Corus (UK) plc [2006] UKHL 20 is a pivotal case in the development of English tort law, particularly in addressing causation and liability in industrial disease claims. By introducing the principle of proportional liability, the House of Lords sought to create a fairer framework for apportioning responsibility among multiple tortfeasors. However, the decision’s perceived impact on claimants led to significant criticism and a swift legislative response to restore joint and several liability for mesothelioma claims.
Despite the controversy, the case remains a key reference point in understanding the balance between fairness to defendants and justice for claimants in cases involving scientific uncertainty and multiple sources of harm. The principles and debates surrounding Barker continue to influence the evolution of tort law in the UK.