Barker (Respondent) v. Corus (UK) plc (Appellants) (formerly Barker (Respondent) v. Saint Gobain Pipelines plc (Appellants)) Murray (widow and executrix of the estate of John Lawrence Murray (deceased)) (Respondent) v. British Shipbuilders (Hydrodynamics) Limited (Appellants) and others and others (Appellants) Patterson (son and executor of the estate of J Patterson (deceased)) (Respondent) v. Smiths Dock Limited (Appellants) and others (Conjoined Appeals)

Ordinary tort causation requires proof, on the balance of probabilities, that the defendant’s breach caused the damage. The Fairchild exception permits liability where a breach materially increased the risk of a disease which occurred, but scientific knowledge cannot identify which materially similar exposure caused it.

The exception may apply although another exposure was lawful, natural, attributable to someone else or caused by the claimant. The competing agents must have operated in the same or substantially the same way. Once the disease has occurred, each defendant is severally liable only for its proportionate contribution to the materialised risk. That proportion may reflect the duration and intensity of exposure and the type of asbestos. Exposure to an unmaterialised risk is not independently actionable.

These conjoined appeals concerned deaths from mesothelioma following multiple periods of asbestos exposure. In the Barker claim, some exposures resulted from employers’ breaches of duty, while later exposure during self-employment was attributed to the deceased’s own failure to take reasonable care. In the Patterson and Murray claims, all material exposures involved breaches of duty, but several responsible employers or insurers were insolvent.

Moses J held in Barker that the Fairchild exception applied and imposed joint and several liability, subject to a 20% reduction for contributory negligence. The Court of Appeal affirmed that decision in Barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545; the courts below followed it in the other two claims. The House had to determine whether non-tortious exposure excluded the exception and whether a defendant was liable for the whole loss or only its proportionate contribution to the risk.

Held, allowing the three appeals by a majority of four to one and remitting the claims for reassessment of damages:

1. Lord Hoffmann delivered the leading speech. Lord Scott of Foscote agreed completely with his conclusions and reasons, while Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed with proportionate liability. The Fairchild exception supplies an exceptional causal link where a defendant’s breach materially increased the risk of the disease which occurred and scientific knowledge cannot identify which exposure caused it.

2. The exception was not confined to cases in which every possible exposure was tortious. Per Lord Hoffmann, the source of another materially similar exposure could be a lawful act, a natural occurrence, another person or the claimant. What was essential was that the competing causative agents operated in the same or substantially the same way. The exception did not extend to an injury potentially caused by wholly disparate agents, as illustrated by Wilsher v Essex Area Health Authority [1988] AC 1074.

3. The ordinary rule imposing joint and several liability for indivisible damage presupposed that each defendant had caused or materially contributed to the injury. That premise was absent because Fairchild liability could arise although a defendant had not caused the mesothelioma. Lord Hoffmann characterised the relevant damage within the exception as the creation of a risk which had materialised. Lord Scott and Lord Walker agreed; Baroness Hale regarded the mesothelioma as the actionable damage but agreed that each defendant’s contribution to its risk could be divided.

4. Each defendant was therefore liable only for the proportion of the total risk attributable to its breach. The trial court could consider the relative duration and intensity of exposure and the type of asbestos. The exception applied only after the disease had occurred; mere exposure to an unmaterialised risk did not found an action.

5. Questions under the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945 would not normally arise because each defendant answered only for the risk it created. Contributory fault or contribution could still arise within a particular period of tortious exposure.

6. Lord Rodger of Earlsferry dissented on apportionment. He considered that McGhee v National Coal Board and Fairchild treated a material increase in risk as a material contribution to the disease. Mesothelioma was indivisible, so the ordinary rule of joint and several liability should apply. The majority remitted Barker to the High Court and the other claims to the County Court for damages to be determined by reference to each defendant’s share of risk.

1. House of Lords: By [2006] UKHL 20, allowed the conjoined appeals by a majority of four to one. The award in Barker was set aside and remitted to the High Court; Patterson and Murray were remitted to the County Court. Damages were to be assessed according to the risk attributable to each defendant.
2. Court of Appeal: In Barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545, Kay, Keene and Wall LJJ affirmed Moses J on the application of the Fairchild exception and joint and several liability. The Court of Appeal followed that decision in the Patterson and Murray claims.
3. First instance: Moses J held that Barker fell within the Fairchild exception and imposed joint and several liability, reduced by 20% for contributory negligence. The judges in Patterson and Murray likewise imposed liability for the whole damage.