Barker v Corus (UK) Plc

The House considered the scope of the exceptional causation rule established in Fairchild v Glenhaven and the appropriate measure of liability where multiple exposures to the same noxious agent (asbestos) may have combined to cause mesothelioma. The majority held that the Fairchild exception can apply even where some material exposures were non-tortious (including exposures by the claimant himself) and that liability under that exception is several, not jointly and severally, so that each defendant is liable in proportion to the contribution it made to the risk of contracting the disease. The court distinguished cases such as Wilsher where different agents operating by different mechanisms could equally have caused the injury and reaffirmed McGhee as an antecedent. The House remitted the cases to lower courts to quantify damages by reference to each defendant's share of the risk; it also observed that contributory negligence and statutory contribution mechanisms (Civil Liability (Contribution) Act 1978; Law Reform (Contributory Negligence) Act 1945) remain relevant in appropriate cases.

The appeals arose from mesothelioma claims where claimants had been exposed to asbestos at different times by multiple employers and, in one case, during a period of self-employment. The respondents (the estates/widows) had obtained damages at first instance and in the Court of Appeal, and the employers appealed. The employers sought a determination whether the Fairchild exception (relaxation of the usual 'but for' test of causation) should be confined to situations in which all possible exposures were tortious and whether, where the exception applies, liability should be joint and several or apportioned.

Nature of the proceedings:

• Conjoined appeals from mesothelioma claims seeking damages for wrongful exposure to asbestos.
• Appellants challenged the application and scope of the Fairchild exception and the rule as to joint and several liability.

Issues framed:

• What are the limits of the Fairchild exception: must all possible exposures be tortious and by employers/occupiers, or can non-tortious exposures (including by the claimant) fall within it?
• What is the proper measure of liability under the Fairchild exception: are defendants jointly and severally liable for the whole damage, or severally liable for an aliquot share proportional to their contribution to the risk?

Reasoning and disposition:

• The House held that Fairchild is not confined to situations where every possible exposure was tortious; McGhee was seen as an application of the same principle and supported an extension to cases involving lawful or self-caused exposures, subject to fairness considerations.
• The court distinguished Wilsher (different causative agents operating differently) and reiterated that the Fairchild exception is narrow and fact-specific.
• On apportionment the majority concluded that liability should be several and quantified by reference to each defendant's contribution to the risk (for example, duration and intensity of exposure), because Fairchild liability is founded on creation of a material risk rather than a finding that each defendant in fact caused the indivisible injury.
• The House allowed the appeals in part and remitted the cases to trial courts to determine damages by reference to the proportion of the risk attributable to each defendant; contributory negligence and statutory contribution remain relevant to particular periods of exposure.

Wider context: the court emphasised the exceptional nature of the Fairchild rule and the need for restraint in any extension; it acknowledged competing policy considerations of fairness to claimants and defendants/insurers and invited practical approaches to apportionment by duration, intensity and type of asbestos where appropriate.

Appeals allowed in part. The House held that the Fairchild exception can apply even where some material exposures were non-tortious (including self-exposure), but that defendants liable under the Fairchild exception are severally liable in proportion to their contribution to the risk of contracting mesothelioma rather than jointly and severally liable for the whole damage. The cases were remitted to the lower courts to quantify damages by reference to each defendant's share of the risk.

On appeal from the Court of Appeal ([2004] EWCA Civ 545), following first instance decisions of Moses J in the High Court. The Court of Appeal had upheld the trial judge's application of Fairchild and the award of joint and several liability; the House of Lords allowed the appeals in part and remitted for re-quantification of damages.