Barker v. Corus (UK) Plc: Apportionment of Liability under the Fairchild Exception

Introduction

Barker v. Corus (UK) Plc ([2006] 2 AC 572) is a landmark decision by the United Kingdom House of Lords that further defined the application and limitations of the Fairchild v Glenhaven Funeral Services Ltd ([2003] 1 AC 32) exception in tort law. This case primarily addressed two pivotal questions left unresolved in Fairchild:

What are the boundaries within which the Fairchild exception applies?
How should liability be apportioned among multiple defendants when the causation of the injury cannot be definitively established?

The appellant, Mr. Barker, had contracted mesothelioma due to asbestos exposure from multiple employers and a period of self-employment where contributory negligence was acknowledged. The crux of the case revolved around whether the Fairchild exception should limit the liability of Corus UK Ltd to an apportioned share based on their contribution to the risk of developing mesothelioma, rather than holding them jointly and severally liable for the entire damage.

Summary of the Judgment

The House of Lords upheld the principles established in Fairchild, affirming that while the traditional “but-for” causation test is insufficient in cases where multiple defendants have breached their duties leading to an increased risk of disease, an exception exists. This exception allows claimants to hold each defendant liable for their proportionate contribution to the risk of harm. Specifically, in the Barker case, Corus UK Ltd was held liable only for a 20% share of the damages, corresponding to Barker's contributory negligence during his period of self-employment.

Furthermore, the House dismissed appeals in related cases (e.g., Smiths Dock Ltd v Patterson and Murray v BS Hydrodynamics Ltd) by endorsing the approach of apportioning liability based on each defendant’s contribution to the risk, rather than imposing joint and several liability.

Analysis

Precedents Cited

The judgment intricately weaves through several key cases that have shaped the landscape of tortious liability concerning mesothelioma:

Fairchild v Glenhaven Funeral Services Ltd ([2003] 1 AC 32): Established the exception to the traditional causation requirement when multiple breaches contribute to the risk of disease.
McGhee v National Coal Board ([1973] 1 WLR 1): Pioneered the principle that materially increasing the risk of harm is tantamount to materially contributing to the harm.
Wilsher v Essex Area Health Authority ([1988] AC 1074): Differentiated cases where multiple causative agents did not lead to applying the Fairchild exception.
Gregg v Scott ([2005] 2 AC 176): Limited the Fairchild exception by rejecting claims based solely on increased risk without proven causation.
Bonnington Castings Ltd v Wardlaw ([1956] AC 613): Early case highlighting that increasing the risk of harm can establish liability even if direct causation is unclear.

Legal Reasoning

The House of Lords delved into the delicate balance between holding employers accountable and ensuring fairness in liability distribution. The reasoning pivoted on the nature of mesothelioma as an “indivisible injury” and the implications of attributing risk-based liability:

Fairchild Exception: Recognized that standard causation is untenable in cases of multiple asbestos exposures, leading to an unjust denial of remedy. Hence, an exception allows for holding defendants liable based on their contribution to the risk.
Apportionment of Liability: The Lords argued against joint and several liability in such cases, proposing that each defendant should only be responsible for their proportionate contribution to the risk. This approach aligns liability with the factual basis of each defendant’s negligence.
Consistency with Medical Science: Acknowledged that current scientific understanding does not permit definitive causation attribution, thereby necessitating a risk-based approach.
Policy Considerations: Emphasized fairness to both plaintiffs and defendants, particularly in scenarios where multiple defendants might be insolvent, thereby impacting the enforceability of joint and several liabilities.

Impact

The decision in Barker v. Corus has profound implications for future mesothelioma claims and the broader tort law:

Apportionment Framework: Establishes a clear precedent for apportioning liability based on each defendant’s contribution to the risk, moving away from the rigid joint and several liability structure.
Encouragement of Fair Liability Distribution: Ensures that defendants are only held accountable for their actual contribution to the risk, promoting a more equitable allocation of damages.
Influence on Other Indivisible Injuries: While specific to mesothelioma, the reasoning may influence how the courts handle other indivisible injuries where causation is multifactorial.
Policy Shift: Reflects a shift towards a more nuanced understanding of tortious liability that accounts for the complexities of modern industrial exposures.

Complex Concepts Simplified

Fairchild Exception

The Fairchild Exception modifies the traditional causation requirement in tort law. Normally, a claimant must prove that the defendant’s negligence directly caused the harm. However, in cases where multiple defendants have each negligently exposed the claimant to the same harmful agent (e.g., asbestos), and it’s scientifically impossible to determine which exposure caused the injury (e.g., mesothelioma), the Fairchild Exception allows the claimant to hold all negligent parties liable, recognizing that any of the exposures could have caused the harm.

Joint and Several Liability

Joint and Several Liability means that each defendant can be held responsible for the entire amount of the claimant’s damages, regardless of their individual degree of fault. The claimant does not have to pursue each defendant for their proportionate share; any one of them can be required to pay the full amount, and it's up to them to seek contribution from the others.

Apportionment of Liability

Apportionment of Liability refers to dividing the total damages among multiple defendants based on their respective contributions to the harm. Instead of each defendant being liable for the entire damage, they are responsible for a portion that reflects their role in creating the risk that led to the harm.

Indivisible Injury

An Indivisible Injury is harm that cannot be physically divided or attributed to separate causes in a meaningful way. Mesothelioma is considered indivisible because it is difficult to determine which specific exposure or asbestos fiber caused the disease.

Conclusion

The House of Lords in Barker v. Corus (UK) Plc significantly advanced the application of the Fairchild Exception by endorsing the apportionment of liability based on each defendant’s contribution to the risk of harm. This approach ensures a fairer distribution of damages, aligning legal responsibility with actual negligence. By moving away from the rigid joint and several liability model, the judgment accommodates the complexities inherent in cases involving multiple negligent exposures, particularly where scientific causation remains elusive. Consequently, this decision not only rectifies potential injustices faced by claimants in multi-defendant scenarios but also imposes a more equitable and practical framework for defendants to navigate their liabilities. The ruling stands as a pivotal reference point for future mesothelioma claims and broader tort cases involving indivisible injuries with multifaceted causation pathways.