This note describes the factual background of the case of Barker v Corus (UK) Limited and the practical effect of the way in which the House of Lords has changed the law on damages for mesothelioma in their recent judgment.
Mr Barker
Vernon Barker was a plasterer by trade, a tall, fit man, an amateur footballer. Around 1994 he became ill. His illness was eventually diagnosed as mesothelioma. He died at the age of 57 on the 14th June 1996.
Mr Barker was brought up in Flintshire, North Wales. Early in his working life he had been exposed to asbestos in two jobs. First, he worked for a local chemical firm called R Graesser Limited from 1958 to 1959. He was heavily exposed to asbestos dust when he mixed asbestos powder with water to form lagging paste, with no protection whatsoever. He probably only did this particular mixing job for a period of about six weeks. The employer could not be pursued. The company was dissolved too long ago and its insurers were not traced.
Then in 1961 he went to work at the Shotton steelworks. He had a succession of jobs there, which exposed him to varying degrees of asbestos dust. His most definite and heaviest exposure to asbestos dust there occurred over a period of about six months, early on in his employment. Again, he was given no protection against asbestos dust. The successors of the steelworks employer were sued and they admitted that they had been negligent.
Each of these two periods of exposure to asbestos was enough on its own to cause mesothelioma.
This succession of jobs was typical of young men living in that part of North Wales, at that time. The failure of the employers to take any effective precautions against asbestos dust was also typical.
In time, Mr Barker became a self-employed plasterer and this was the work he did up to the time when he became ill. He encountered asbestos materials from time to time, as did many men of his age in building trades in that period. At times he was a labour-only sub-contractor taken on by a main contractor, who typically supplied materials and perhaps tools, and on these occasions Mr Barker was an employee in all but name; but at other times he himself employed men to work on contracts he obtained. This is not so typical. It is why there was a finding, in the trial of the case in the High Court, that there was some fault on Mr Barker’s part, leading to a deduction from his damages for contributory negligence.
Mr Barker left a widow, Sylvia, and adult son and daughter. He did not live to see his grandchildren. Mrs Barker was advised by the coroner, who found her husband’s death to have been caused by the industrial disease mesothelioma, that she should investigate claimaing compensation for her husband’s illness and death.
The grounds of appeal in the House of Lords
In the House of Lords there were two further cases heard alongside Mrs Barker’s. However there was one ground of appeal that was unique to Mrs Barker’s case:
Appeal 1
Whether a claimant with mesothelioma who has been exposed to asbestos dust during a period of self-employment or by a blameless employer, as well as exposure by a negligent employer, is entitled to succeed at all.
This was an attempt to restrict the application of the Fairchild decision to cases in which all the exposure to asbestos was by negligent employers.
The second ground of appeal has further reaching implications:
Appeal 2
Whether a claimant who develops mesothelioma after more than one period of exposure to asbestos dust should be awarded damages not in full but only in proportion to the part of the risk of developing mesothelioma created by the employers that are sued.
This ground of appeal was common to all three cases.
The Result
Appeal 1
Mrs Barker successful, 5 – nil
Appeal 2
Employers successful, 4 – 1
Effect of decision
1.Self-employed exposure: mesothelioma sufferers who had part of their asbestos exposure when they were self-employed can still bring successful claims against their employers in respect of the rest of their asbestos exposure.
2 Non-negligent exposure by employers: mesothelioma sufferers who cannot prove negligence against all the employers that exposed them to asbestos can also continue to bring successful claims.
3 Multiple employers: mesothelioma sufferers with more than one period of exposure to asbestos dust can still bring claims for compensation through the courts, but …
4 Reduced damages: their damages will be reduced if they do not or cannot sue all employers responsible.
5 Divisible injury: mesothelioma will be treated as “divisible injury” (even though it is in fact an indivisible injury) when damages are calculated. Each employer will be treated as having caused a separate amount of damage.
6 Shortfall in damages: if one employer does not pay up, it will not be possible to pursue other employers for the shortfall. If it is not possible to sue each and every employer responsible, then part of the damages will be irretrievably lost and cannot be claimed from anyone else.
7 Contributory negligence will no longer apply in mesothelioma cases (except in very restricted circumstances). There would no longer be a contributory negligence finding against Mr Barker. There would still be a deduction from compensation for the period of exposure to asbestos dust during self-employment.
9 Payments made under the Pneumoconiosis Etc (Workers Compensation) Act 1979: it is controversial whether these payments can be set off against the damages paid. The employers argued in the House of Lords that a 1979 Act payment should be treated as compensating for exposure to asbestos by untraceable or unsuable employers. However, that suggestion is controversial in view of the present law on the subject, and the House of Lords declined to make any ruling on it.
10 Method of dividing up damages: each employer is liable to pay the share of full damages for mesothelioma that is proportionate to the part of the risk of developing mesothelioma that the employer created. In practice this will mean looking at the intensity, duration and frequency of asbestos exposure in each relevant period of employment and the relative toxicity of different fibre types, if different types were encountered during differing periods of exposure. No examples are available yet – the House of Lords has not recalculated Mrs Barker’s damages but has sent the case back to the High Court for it to do so.
11 Evidential problems: more evidence will be needed in some cases. Mesothelioma claimants will be asked to remember, and may well not remember, how often and for how long they were exposed to asbestos dust in a succession of jobs. More evidence is likely to be needed from occupational hygiene experts, who will have to attempt to calculate an individual’s asbestos “dose” in each period of employment, usually with very limited evidence of variable quality. Expert witnesses used in mesothelioma cases are already becoming too busy in the wake of the Barker judgment.
12 Technical and legal arguments about who was responsible for which proportion of the risk. Therefore ……
13 Delay: Many more mesothelioma sufferers will now die before their claims are resolved.
14 Injustice for mesothelioma sufferers
15 Massive savings for employers and insurers in compensation paid. But legal costs in mesothelioma claims will increase.
Quotation from Lord Rodger (the one dissenting law lord):
“Now the House is deciding that, in this particular enclave of the law, the risk of the insolvency of a wrongdoer or his insurer is to bypass the other wrongdoers and their insurers and to be shouldered entirely by the innocent claimant. As a result, claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.” (paragraph 90; emphasis added)
The full text of the judgment
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