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Why the Compensation Act 2006 is important

The Compensation Act 2006 reversed the House of Lords’ decision in Barker v Corus UK Ltd on apportionment in cases where the claimant has suffered mesothelioma. It clarifies that any defendant which contributes to the risk of harm will therefore be jointly and severally liable for the claimant’s harm. Section 16(3) clarifies that this rule is treated as having always been the case.

Section 3 – Mesothelioma damages

(1) This section applies where—
(a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,
(b) the victim has contracted mesothelioma as a result of exposure to asbestos,
(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and
(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

(2) The responsible person shall be liable—
(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos—
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no liability in tort), and
(b) jointly and severally with any other responsible person.

(3) Subsection (2) does not prevent—
(a) one responsible person from claiming a contribution from another, or
(b) a finding of contributory negligence.

Section 16(3) – Commencement

Section 3 shall be treated as having always had effect.

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Barker v Corus UK Ltd

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