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Barker -v- Corus: The Judicial Committee of the House of Lords rules again on mesothelioma claims

Mesothelioma is a fatal cancer caused almost exclusively by asbestos exposure. It is unquestionably an indivisible injury: a condition where it is not possible to attribute different parts of the damage to different causes. The scientific evidence is unable to attribute specific and quantifiable causal influence in the development of malignant mesothelioma and this becomes significant where an injured victim has been exposed to asbestos during multiple periods of employment with different employers or where they may have had a period of self-employment during which there was exposure to asbestos. If the claimant cannot prove which of the ‘guilty’ periods of employment has caused the malignant mesothelioma that he has in fact developed then does this mean his claim should fail?

In Fairchild -v- Glenhaven Funeral Services Limited, it was held that, where a claimant could establish he had mesothelioma as the result of being wrongly exposed to asbestos by two or more defendants, but could not establish on the balance of probabilities which one of them had caused the disease, he nevertheless had a good cause of action against each employer for materially increasing the risk that he would develop the disease which in fact he has developed.

This ‘relaxed’ test of causation applied by the House of Lords in Fairchild was founded on grounds of policy for reasons of fairness to enable injured victims of mesothelioma to claim against one employer for all of their compensation and to leave that employer to recover contributions from other joint wrongdoers. However, Fairchild left a number of questions unanswered and in particular it was uncertain whether liability under Fairchild for mesothelioma was joint and several for the entirety of the loss, as had previously been thought, or proportionate only to the extent to which a given defendant contributed to the risk of development of mesothelioma during the particular period of employment. In Barker v Corus (Barker), the House of Lords, by a majority of 4 to 1, found that principles of joint and several liability applied only to situations in which there were joint tortfeasors who could be shown to have each actually caused the damage complained of. Joint and several liability did not apply where all that could be shown of potential multiple defendants was that they each materially increased the risk of development of the harm that was complained of and which had in fact occurred. This subtle and perhaps rather tenuous distinction enabled Lord Hoffman in particular to find liability for mesothelioma under Fairchild was for the risk of harm and therefore a defendant’s liability should be in proportion to the contribution he has made to the risk of the harm occurring. Even though mesothelioma is an indivisible injury, the risk could and should be divided. From a practical point of view therefore, the claimant who has been exposed to asbestos by a number of different ‘guilty’ employers, but where some are no longer in business and have no solvent insurer still in business, would lose that proportion of the claim related to that wrongdoer. This would reduce the compensation available to victims and their families, and,quite considerably, in some cases.

It also follows that where a particular claimant has exposed themselves to asbestos, during a period of self-employment, they could not claim against themselves and would therefore lose this proportion of the claim by way of contributory negligence. Post Barker it was unclear upon what basis mesothelioma claims were to be divided; was it on the basis of the intensity or duration of the asbestos exposure? The trades unions lobbied parliament and Tony Blair indicated the Government would consider this issue promptly. Richard Langton, President of the Association of Personal Injury Lawyers (APIL) said the speed with which the Government addressed the issue could mean thousands of mesothelioma victims and their families have a better chance of obtaining compensation. As a result of campaigning from many different quarters, the Government has now taken the highly unusual step of reversing the House of Lord’s decision in Barker through legislation. Section 3 of the Compensation Act 2006, which came into force on 25 July 2006, places mesothelioma claims on a footing of joint and several liability and provides for reduced compensation for contributory negligence. Sub clause 16 also makes the legislation retrospective, in another highly unlikely move by the Government. Secretary of State for Work and Pensions, John Hutton, has stated recently an outline of commitments to speed up the conduct of mesothelioma claims. He also confirmed the Government would put in place a long term solution. Interim measures are intended to be implemented relatively quickly to speed up claims across the UK. A standard claim letter should be in place by October 2006. A leaflet is to be drafted for those diagnosed with mesothelioma to explain the help available to them and where to find it. The Department of Work and Pensions (DWP) is to clarify with claims handlers best practice for ensuring priority for industrial injuries disablement benefits for those with mesothelioma. The DWP is also to work with the Revenue & Customs to address tracing employer records more quickly. To support the Code of Practice for tracing Employers’ Liability Compulsory Insurance (ELCI) policies, the Association of British Insurers (ABI) will introduce a telephone enquiries helpline in Autumn 2006 and will also issue guidance for how to get the best out of the Code. The Government is also to review the code for tracing ELCI policies to ensure the code is comprehensive and has the confidence of users. The ABI is to promote best practice within the wider insurance industry with a claims handling best practice guide. The Government has also indicated it will work with all of the interest groups in this area to consider further public awareness activity to encourage claimants to use qualified, experienced legal practitioners when making a claim.

Master Whitaker’s fast track mesothelioma provisions which are intended to deliver justice to the victims of this fatal disease more quickly, have been identified by APIL as requiring replication across a limited but identified number of regional centres, properly resourced with district judges. The Department of Constitutional Affairs (DCA) will be talking to Master Whitaker about how to develop this further. The DCA believes any extension of the scheme should be gradually introduced and any replica provisions involve only specialist judges.

For further enquiries please contact Peter Flory (view full profile) on 01892 701323 or email pflory@ts-p.co.uk.

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