Barker v. Corus
Encyclopedia
Barker v Corus plc [2006] UKHL 20 is a notable House of Lords
decision in the area of industrial liability in English tort law
, which deals with the area of causation
. In this case, the House of Lords reconsidered its ruling in the earlier landmark case Fairchild v Glenhaven Funeral Services Ltd concerning the liability of multiple tortfeasors.
. Mesothelioma is a fatal illness which is caused by exposure to asbestos
, but the risk of which increases depending on how often one is exposed. Because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it was impossible to know which employer actually caused the disease, although all of them admittedly increased the risk of the disease occurring. Unlike Fairchild, in which the House of Lords held that all the employers were jointly and severally liable
for the damage, in this case some of the employers have become insolvent
.
The outcome was a new concept of "proportionate liability". So for example, Mr B has worked for employers X, Y, and Z for ten years each. X, Y and Z have all exposed Mr B to asbestos, and it is not possible to say with which employer Mr B had contracted a disease. But now X and Y have gone insolvent, and Mr B is suing Z. Under the Barker v. Corus principle, Z would only have to pay one third of the full compensation for Mr B's disease, in other words, Z has only "proportionate liability" for that part which he materially increased the risk of Mr B's harm. This outcome was advocated by a number of academics.
was introduced, specifically to reverse the ruling. However the Act only applies to asbestos related disease. What remains to be seen is whether the "proportionate liability" idea will crop up in other situations.
The essential decision to be made is whether a tortfeasor or a claimant should bear the risk of other tortfeasors going insolvent. It is important to keep in mind, that in the example above, Z may not have actually caused any harm. Moreover, it might have been that Z in fact caused all the harm. But most importantly the claimant himself certainly caused none of the harm.
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
decision in the area of industrial liability in English tort law
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
, which deals with the area of causation
Causation in English law
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
. In this case, the House of Lords reconsidered its ruling in the earlier landmark case Fairchild v Glenhaven Funeral Services Ltd concerning the liability of multiple tortfeasors.
Facts
Like in Fairchild, the claimants had contracted mesothelioma after having worked for a number of different employers, all of whom had negligently exposed them to asbestosAsbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
. Mesothelioma is a fatal illness which is caused by exposure to asbestos
Asbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
, but the risk of which increases depending on how often one is exposed. Because of long latency periods (it takes 25 to 50 years before symptoms of disease become evident) it was impossible to know which employer actually caused the disease, although all of them admittedly increased the risk of the disease occurring. Unlike Fairchild, in which the House of Lords held that all the employers were jointly and severally liable
Joint and several liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:* jointly liable, or* severally liable, or* jointly and severally liable.-Joint liability:...
for the damage, in this case some of the employers have become insolvent
Insolvency
Insolvency means the inability to pay one's debts as they fall due. Usually used to refer to a business, insolvency refers to the inability of a company to pay off its debts.Business insolvency is defined in two different ways:...
.
Judgment
The main question in this case was whether the solvent employers should pick up the proportion of the damage for which the insolvent employers were responsible? In other words, should a tortfeasor or a claimant bear the risk of the other tortfeasors going insolvent? The House of Lords accepted the argument that the solvent employer should not:
(Per Lord Hoffman) “In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.”
The outcome was a new concept of "proportionate liability". So for example, Mr B has worked for employers X, Y, and Z for ten years each. X, Y and Z have all exposed Mr B to asbestos, and it is not possible to say with which employer Mr B had contracted a disease. But now X and Y have gone insolvent, and Mr B is suing Z. Under the Barker v. Corus principle, Z would only have to pay one third of the full compensation for Mr B's disease, in other words, Z has only "proportionate liability" for that part which he materially increased the risk of Mr B's harm. This outcome was advocated by a number of academics.
Effect
After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling. This was on the basis that it would undermine full compensation for working people and their families. Soon enough the Compensation Act 2006Compensation Act 2006
The Compensation Act 2006 is an Act of the Parliament of the United Kingdom, introduced in response to concerns about a growing compensation culture but conversely to ensure that the public received dependable service from claims management companies...
was introduced, specifically to reverse the ruling. However the Act only applies to asbestos related disease. What remains to be seen is whether the "proportionate liability" idea will crop up in other situations.
The essential decision to be made is whether a tortfeasor or a claimant should bear the risk of other tortfeasors going insolvent. It is important to keep in mind, that in the example above, Z may not have actually caused any harm. Moreover, it might have been that Z in fact caused all the harm. But most importantly the claimant himself certainly caused none of the harm.
See also
- Fairchild v. Glenhaven Funeral Services LtdFairchild v. Glenhaven Funeral Services LtdFairchild v Glenhaven Funeral Services Ltd [2002] is a leading case on causation in English tort law. It concerned mesothelioma, a deadly disease caused by breathing asbestos fibres...
- NegligenceNegligenceNegligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
- Asbestos and the lawAsbestos and the lawThis article concerns asbestos-related legal and regulatory issues. Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history...
- English tort lawEnglish tort lawEnglish tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
- CausationCausation in English lawCausation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
External links
- Full text of Barker v. Corus plc UKHL 20 from the House of Lords.