Why Barker v Corus UK Ltd is important
In Barker v Corus UK Ltd, the House of Lords extended the principle from Fairchild v Glenhaven Funeral Services to cases where the claimant was exposed to dust by tortious and non-tortious sources. However, the House held that a defendant is only liable for their contribution of the risk that the claimant would contract the disease, rather than being joint and severally liable.
Mr Barker was exposed to asbestos three times during his career as a plasterer. On two occasions he was asbestos whilst working for an employer. One employer, Graessers Ltd, had since become insolvent. The other employer was Corus UK Ltd. The third exposure was whilst working as a self-employed plasterer.
As a result of this exposure, Mr Barker contracted mesothelioma and sadly died. It could not be shown which exposure (or combination of exposures) caused the disease.
Mr Barker brought a claim in the tort of negligence against Corus UK Ltd for his entire loss. It was accepted that the two employers breached their duty of care with respect to Mr Barker. However, the third exposure was not tortious as Mr Barker does not owe a duty of care with respect to himself. The two questions for the House of Lords were:
- Whether the rule in Fairchild extends to cases where the claimant is exposed by tortious and non-tortious sources;
- If yes, whether liability is shared jointly and severally between the tortious sources, or limited to the extent they contributed to the risk of harm.
The House of Lords held that Corus UK Ltd were liable in the tort of negligence. However, the damages awarded were reduced to reflect only the contribution to the risk of harm caused by Corus.
The HL explained the Fairchild-exception is only used when it can not be shown which source caused the harm. They therefore reiterated it must be impossible to show which causative agent in fact caused the harm. In such cases, the defendant is held responsible for contributing to the risk of harm. They are not deemed to have caused the harm, or materially contributed to it.
Tortious and non-tortious sources
The House held that it should be extended to cases where the exposure is caused by tortious and non-tortious sources. In the words of Lord Hoffmann:
The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. For this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself. These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant’s conduct and the claimant’s injury, they should not matter.
The House of Lords held Corus were only liable to the extent they contributed to the risk of harm. This conclusion followed from the Court’s construction of the Fairchild exception. The Court did not deem that the defendants had caused or materially contributed to the harm. Instead, they simply said they had contributed to the risk of the claimant suffering harm, which was sufficient where it could not be shown which was the operative cause.
Lord Hoffmann said:
Consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance. If that is the right way to characterise the damage, then it does not matter that the disease as such would be indivisible damage
Lord Hoffmann further supported this conclusion as being the fairest outcome for the defendant. He also concluded this was fair given liability here is based on probability and risk, rather than conclusive proof of causes. He said:
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.
Lord Roger’s dissent
Lord Roger agreed that it makes no difference if a source contributing to the risk of harm is non-tortious. However, he concluded that each defendant should nevertheless be jointly and severally liable in full to the claimant.
Lord Roger rejected the House’s interpretation of the Fairchild exception. He concluded that the House Lords in Fairchild treated the defendants as causing or materially contributing to the harm itself, rather than simply the risk of the claimant suffering harm. The majority approach, he said was, “not so much reinterpreting as rewriting the key decisions in McGhee [case] and Fairchild [case].”
This conclusion, he said, was also the simplest, and matched how insurers usually treat asbestos-related claims. It also, he said, avoided passing the risk of a wrongdoer going insolvent on to other wrongdoers. This contrasts with the majority’s approach which passes this risk onto the claimant.