Barker v Corus (UK) plc [2006] UKHL 20, [2006] 2 AC 572 (HL)

Facts

The claimant had been exposed to asbestos during employment with multiple employers, as well as during a period of self-employment. He developed mesothelioma and later died. As in Fairchild, it was impossible to determine which exposure had actually caused the disease.

One of the key issues was that some of the exposure had occurred while the claimant was self-employed, meaning no employer could be held liable for that period. The question arose as to whether each employer should be jointly and severally liable for the entire damage, or only liable in proportion to the risk they had created.

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Issue

Where liability is established under the Fairchild “material increase in risk” principle, should each defendant be jointly and severally liable for the whole damage, or only proportionately liable according to the risk they contributed?

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Decision

The House of Lords held that liability should be several and proportionate. Each defendant was liable only for the proportion of the risk they had created, rather than for the entirety of the damage.

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Legal Principle

In mesothelioma cases governed by the Fairchild exception, liability is based on the creation of risk rather than proven causation. Accordingly, damages should reflect each defendant’s contribution to that risk, leading to proportionate rather than joint and several liability.

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Importance

• Limited the scope of Fairchild by introducing proportionate liability.

• Treated liability as risk-based rather than damage-based.

• Prompted legislative intervention through the Compensation Act 2006, which restored joint and several liability in mesothelioma cases.

• Illustrates judicial tension between corrective justice and policy considerations in causation.