House of Lords
|Session 2005 - 06|
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barker (Respondent) v. Corus (UK) plc (Appellants) (formerly barker (Respondent) v. Saint Gobain Pipelines plc (Appellants) and others (Conjoined Appeals)
1. In Fairchild v Glenhaven Funeral Services Ltd  UKHL 22;  1 AC 32 the House decided that a worker who had contracted mesothelioma after being wrongfully exposed to significant quantities of asbestos dust at different times by more than one employer or occupier of premises could sue any of them, notwithstanding that he could not prove which exposure had caused the disease. All members of the House emphasised the exceptional nature of the liability. The standard rule is that it is not enough to show that the defendant's conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant's conduct did cause the damage in the sense that it would not otherwise have happened. In Fairchild, the state of scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. A claim against any person responsible for any such exposure would therefore not satisfy the standard causal requirements for liability in tort. But the House considered that, in all the circumstances of the case, that would be an unjust result. It therefore applied an exceptional and less demanding test for the necessary causal link between the defendant's conduct and the damage.
2. These three appeals raise two important questions which were left undecided in Fairchild. First, what are the limits of the exception? In Fairchild the causal agent (asbestos dust) was the same in every case, the claimants had all been exposed in the course of employment, all the exposures which might have caused the disease involved breaches of duty by employers or occupiers and although it was likely that only one breach of duty had been causative, science could not establish which one it was. Must all these factors be present? Secondly, what is the extent of liability? Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease - a risk which is known to have materialised.
The three cases
3. Both of these questions are raised by the appeal in barker v Corus (UK) Plc. Mr barker died of asbestos-related mesothelioma on 14 June 1996. During his working career he had three material exposures to asbestos. The first was for 6 weeks in 1958 while working for a company called Graessers Ltd. The second was between April and October 1962, while working for John Summers Ltd (now Corus (UK) Ltd ("Corus")). The third was for at least 3 short periods between 1968 and 1975, while working as a self-employed plasterer. The first two exposures were in consequence of breaches of duty by the employers and the last is agreed to have involved a failure by Mr barker to take reasonable care for his own safety. Thus, unlike the facts of Fairchild, not all the exposures which could have caused the disease involved breaches of duty to the claimant or were within the control of a defendant. The first question is whether this takes the case outside the Fairchild exception. If it does not, the second question is whether Corus is liable for all the damage suffered by Mr barker's estate and dependants or only for its aliquot contribution to the materialised risk that he would contract mesothelioma. Moses J decided that the case was within the Fairchild exception and that Corus was liable jointly and severally with Graessers Ltd, but subject to a 20% reduction for Mr barker's contributory negligence while he was self-employed. As Graessers Ltd is insolvent and without any identified insurer, Corus is unable to recover any contribution. The Court of Appeal ((Kay, Keene and Wall LJJ) agreed with the judge on both points: see barker v Saint-Gobain Pipelines plc  EWCA Civ 545;  3 All ER 661.
4. In the other two appeals, all the exposures to asbestos were in breach of duties owed by employers or occupiers and there was no dispute that the cases fell within the Fairchild exception. The only question was whether liability was joint and several or only several. In Smiths Dock Ltd v Patterson, Mr Patterson, who died of mesothelioma on 3 May 2002 at the age of 93, had been during his working life regularly exposed to asbestos, in breach of duty, by 4 employers: Smiths Dock Ltd, Vickers Armstrong Ltd, Swan Hunter and Hawthorne Leslie. The latter two companies, both of which are insolvent and whose insurers are also insolvent, accounted between them for 83.22% of the period for which exposure took place. The first two were responsible, in roughly equal shares, for the rest. The question was whether they were nevertheless jointly and severally liable for the whole damage. In Murray v BS Hydrodynamics Ltd, Mr Murray, who died of mesothelioma on 19 November 1999 at the age of 75, spent most of his working life in the Tyne shipyards and had been exposed to asbestos, in breach of duty, by a considerable number of employers. The five joined as defendants account for 42.5% of the period of exposure; the others are insolvent and uninsured. Again the question is whether the solvent defendants are jointly and severally liable for the full damage. In both cases the judges and the Court of Appeal followed the decision in barker's case and decided that they were.
The limits of Fairchild
5. My Lords, the opinions of all of your Lordships who heard Fairchild expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. It is only natural that, the dyke having been breached, the pressure of a sea of claimants should try to enlarge the gap. Indeed, an attempt to extend the principle of liability for increasing the likelihood of an unfavourable outcome to the whole of medical negligence was narrowly rejected in Gregg v Scott  UKHL 2;  2 AC 176. But each member of the Committee in Fairchild  1 AC 32 stated the limits of what he thought the case was deciding in slightly different terms. Thus Lord Bingham of Cornhill at p 40, para 2, formulated the question before the House as follows:
6. To this question he gave, at p 68, para 34, the answer that C was entitled to recover against both A and B, but emphasised that his opinion was "directed to cases in which each of the conditions specified in (1)-(6) is satisfied and to no other case."
7. Lord Nicholls of Birkenhead, at p 70, para 43, was less prescriptive, saying only that "considerable restraint is called for in any relaxation of the threshold 'but for' test of causal connection", that "policy questions will loom large" and that it was "impossible to be more specific".
8. My own opinion, at p 74, para 61, identified five features which were said cumulatively to justify the exception:
9. Lord Hutton, who considered that the exception did not impose liability for exposure which merely increased the likelihood that the claimant would contract the disease but defined the circumstances in which a court would, as a matter of law, infer that the exposure had caused ("materially contributed to") the disease, said, at p 91, para 108, that such an inference should be drawn in:
10. Finally, my noble and learned friend Lord Rodger of Earlsferry said, at pp 118-119, paras 169-170, that he would:
11. The assistance which can be derived from these various formulations is limited. No one expressly adverted to the case in which the claimant was himself responsible for a significant exposure. Lord Bingham's formulation requires that all possible sources of asbestos should have involved breaches of duty to the claimant; Lord Rodger allowed for a non-tortious exposure by a defendant who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. On the other hand, no one thought that the formulations in Fairchild were the last word on the scope of the exception. Lord Bingham said, at p 68, para 34:
Now such cases have arisen.
The reinterpretation of McGhee
12. Given that neither of the issues which I have identified arose or was argued in Fairchild, counsel on both sides very sensibly did not place great weight upon a close textual analysis of the way their Lordships formulated the exception. Perhaps more profitable is an examination of what the House said about its earlier decision in McGhee v National Coal Board  1 WLR 1. The facts of this case are too well known to need detailed repetition.