Introduction
The legal principle of causation seeks to establish the link between a defendant's actions and the harm suffered by a claimant. In instances where multiple factors contribute to an injury and medical science cannot pinpoint a specific cause, the traditional "but for" test of causation becomes problematic. The "Fairchild exception," established in Fairchild v Glenhaven Funeral Services [2002] UKHL 22, addresses this issue by allowing liability where a defendant materially increased the risk of harm. Barker v Corus UK Ltd [2006] 2 AC 572 further refined this concept, specifically in the context of mesothelioma, a cancer caused by asbestos exposure. The case examined the apportionment of damages when multiple exposures to asbestos, from varied sources including the claimant’s own actions, were in play. This ruling focused on how liability should be determined when an employer’s negligence increased the risk, but not necessarily the sole cause.
The Facts of Barker v Corus
The factual matrix of Barker v Corus centered around a claimant who had died from mesothelioma. This claimant had been exposed to asbestos during several periods of employment, including a significant period with the defendant employers, along with a short period with another employer, and also during three instances of self-employment. The claimant's estate pursued a claim against the defendant employers based on the principle established in Fairchild. The key point of dispute was whether the defendant employers should be held entirely liable (jointly and severally) for the harm suffered, or only proportionally liable for their contribution to the risk of contracting mesothelioma. The defendant employers argued that they should only be liable in proportion to the risk they had created, since there were multiple exposures. The House of Lords, in a split decision, allowed the appeal and held that damages should be apportioned in accordance to risk contributed by the particular defendants.
The House of Lords Decision and Proportional Liability
Lord Hoffmann, in his leading judgment, addressed several critical points regarding the application of the Fairchild exception. The initial issue regarded the source of the exposures. The Court held that the Fairchild exception applied irrespective of whether the exposure, other than by a defendant, was tortious, non-tortious, by natural causes, human agency, or the claimant himself. The judgment shifted the focus from proving that a specific exposure from a defendant directly caused the mesothelioma to determining whether the defendant had materially increased the risk of the claimant contracting the disease. Lord Hoffmann argued that "the damage that was caused was the creation of risk and chances are infinitely divisible." This led to the concept of proportional liability, which meant that each defendant's damages would be assessed based on the degree of risk they contributed.
The Court concluded that “proportional damages smooth the roughness of the justice which a rule of joint and several liability creates” and that a defendant should not be liable for more than the damage which he caused. This decision departed from the traditional approach of holding each tortfeasor jointly and severally liable, where any one could be held responsible for the entire sum of the damages. Instead, the House of Lords held that assessing damages would involve quantifying the risk contributed by the particular defendant. This approach acknowledged that in mesothelioma cases, the harm is often a result of a combination of multiple risk factors, some of which may not be attributable to the negligence of the defendant.
Section 3 of the Compensation Act 2006 and Joint and Several Liability
The decision in Barker v Corus was not without its controversy and quickly prompted legislative change. Parliament responded to public concerns over the practicalities of apportioning damages in mesothelioma claims. The result was section 3 of the Compensation Act 2006. This legislation, enacted shortly after Barker v Corus, reinstated the principle of joint and several liability in cases where employees develop mesothelioma from asbestos exposure in the workplace. The core purpose of the Act was to ensure that claimants, in cases where several employers might be dissolved or untraceable, would not be unfairly penalized by an inability to receive full compensation. The Act effectively overrode the proportional damages approach set out in Barker v Corus specifically for mesothelioma claims. The change was made to provide a safety net for claimants who might otherwise not be able to secure their due compensation.
The Continued Relevance of Barker v Corus
Despite being partially overruled by the Compensation Act 2006, Barker v Corus maintains relevance in cases concerning asbestos-related diseases outside mesothelioma. Heneghan v Manchester Dry Docks [2016] EWCA Civ 86 affirmed that the proportional apportionment of damages according to risk, established in Barker, continues to apply to diseases caused by asbestos exposure other than mesothelioma. In the Heneghan case, the claimant’s father had died from lung cancer. The medical evidence could not establish which exposure out of the multiple defendant employers, had actually caused the cancer. The Court of Appeal upheld that the Fairchild exception applied to lung cancer claims that were not mesothelioma. The Court of Appeal also reiterated that the “material contribution test” used in cases of divisible injury was not appropriate in cases of indivisible injuries such as cancer. The Heneghan ruling reinforced the position that even though lung cancer is considered an indivisible injury, the risk of lung cancer is divisible. As such, damages should be apportioned based on the proportional risk contribution of each defendant. This application demonstrated the continuing importance of the Barker principle for certain cases, which are not covered by the legislative override of the Compensation Act 2006.
Applying Proportional Liability: An Example
To better understand the application of proportional liability following Barker v Corus and where the Compensation Act does not apply, consider a hypothetical case. An individual develops lung cancer due to exposure to asbestos, not mesothelioma, during two separate periods of employment. Employer A exposed the individual to asbestos for a longer period and in higher concentrations. Employer B exposed the individual for a shorter duration and with lower levels of asbestos. Under the Barker ruling (and as applied in Heneghan), rather than holding either Employer A or B liable for the entire sum of the damages, the damages would be allocated based on their relative contributions to the risk of contracting lung cancer. If it were determined that Employer A created 75% of the risk and Employer B 25%, each would be liable for only those portions of the overall damages. This example illustrates how the concept of proportional liability works to adjust the damages according to the actual risk exposure each defendant contributed to, in cases of indivisible injury.
Conclusion
Barker v Corus UK Ltd significantly altered the approach to causation and damages in cases where multiple exposures could have contributed to a claimant's injury. The decision introduced the idea that where the Fairchild exception applies, damages should be apportioned according to the defendant's contribution to risk. While section 3 of the Compensation Act 2006 overturned the proportional liability concept in mesothelioma claims, the core principle of Barker v Corus remains relevant for other asbestos-related diseases. It continues to impact tort law by reinforcing the importance of considering the extent of risk each defendant's actions created when establishing liability. Cases such as Heneghan v Manchester Dry Docks demonstrate the ongoing application of the principle established in Barker v Corus where joint and several liability doesn't apply due to the Compensation Act 2006 and the type of injury is not mesothelioma. Barker v Corus and its ongoing influence provides a detailed illustration of the complexities in the application of tort law.
