Barker v Saint Gobain Pipelines Plc

The exceptional causation approach for mesothelioma is not confined to cases in which every possible source of exposure was another person’s tortious conduct. Where a defendant’s non-insignificant breach exposed the claimant to the risk and the risk materialised, possible exposure during self-employment does not defeat the claim. Any claimant fault is addressed through contributory negligence. Mesothelioma remains an indivisible injury, so ordinary joint and several liability applies. Relative exposure does not justify apportioning the claimant’s damages between concurrent tortfeasors without compelling justification.

Sylvia Barker, widow of a man who died from mesothelioma, appealed against damages awarded by Moses J. The deceased had been exposed to asbestos during employment with Graessers, employment with the respondent’s predecessor, and self-employment as a plasterer. Liability was accepted for the predecessor’s breach. The appeal challenged whether the approach in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 applied despite the self-employment exposure, and whether liability should be apportioned to reflect the other exposures. Moses J awarded £152,000, representing four-fifths of the agreed full damages after contributory negligence. The central issues were whether self-employment barred the modified causation rule and whether the indivisible-injury principle should be altered.

1. Disposition. Kay LJ dismissed the appeal. Keene LJ agreed with that conclusion, and Wall LJ also agreed. The award therefore stood, subject to the contributory-negligence reduction made at trial.
2. Causation. The rule in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 was an exceptional, policy-based relaxation of the ordinary but-for test. It was capable of incremental and analogical development. It was not a pre-condition that the mesothelioma must have been caused by another person’s tortious act. It was sufficient that the defendant, in breach of duty, exposed the claimant to a non-insignificant risk of mesothelioma and that the risk materialised. Possible exposure during self-employment did not therefore bar recovery.
3. Claimant’s own conduct. Where the claimant’s self-employment involved fault which materially increased the risk, the appropriate response was contributory negligence rather than a complete denial of liability. The relevant reduction could be made under the Law Reform (Contributory Negligence) Act 1945.
4. Apportionment. Mesothelioma was a single indivisible injury. Applying the principles in Dingle v Associated Newspapers [1961] 2 QB 162 and Rahman v Arearose Ltd [2001] QB 351, the ordinary rule of joint and several liability remained applicable. Relative exposure or risk did not justify reducing the claimant’s damages. Contribution between tortfeasors and contributory negligence provided the appropriate mechanisms for addressing the competing considerations. No compelling justification for departing from the established rule was shown.

1. Court of Appeal (Civil Division): The appeal was dismissed. [2004] EWCA Civ 545.
2. High Court, Manchester District Registry: Moses J awarded damages on 23 May 2003, reduced for contributory negligence. No separate citation for that decision was stated in the judgment.