Compensation Act 2006 s 3: Mesothelioma Liability and Apport...

Introduction

Section 3 of the Compensation Act 2006 resolves a long-standing problem in mesothelioma claims. Because mesothelioma can develop decades after exposure to asbestos, claimants often cannot show which specific employer, site, or period of exposure caused the disease. At common law, the House of Lords in Fairchild allowed claimants to recover where a defendant materially increased the risk of mesothelioma, but Barker later suggested damages should be apportioned between defendants. Parliament stepped in with section 3 to ensure claimants are not short-changed.

In short, section 3 makes each responsible person liable for the whole damage, with joint and several liability between them. It leaves contribution and apportionment to be sorted out between defendants (and their insurers) after the claimant has been paid. The provision applies in England, Wales, and Scotland and operates alongside the common law causation rule for mesothelioma.

What You'll Learn

• How the Fairchild rule on “material increase in risk” works in mesothelioma cases
• What section 3 changes compared with Barker’s proportionate damages approach
• The meaning of joint and several liability for claimants and defendants
• How contribution between defendants operates under the Civil Liability (Contribution) Act 1978
• The limits of section 3 (disease-specific scope and jurisdiction)
• How courts approach evidence of exposure, dose, and “more than minimal” risk
• Key cases: Fairchild, Barker, Sienkiewicz, Durham v BAI (Trigger), and Heneghan
• Practical steps for running, defending, and settling mesothelioma claims

Core Concepts

The Fairchild rule and causation in mesothelioma

• Mesothelioma is an indivisible disease with a long latency period. Medical science cannot usually identify which particular exposure triggered it.
• In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, the House of Lords held that a claimant can succeed by showing a defendant’s breach of duty materially increased the risk of contracting mesothelioma. This is different from the traditional “but for” test.
• “Material” means more than minimal. The courts do not require the claimant to prove which exposure actually caused the disease, only that the defendant’s breach made a real contribution to the risk.
• Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 confirmed that the Fairchild rule can apply even where there is a single tortfeasor (e.g., one employer) so long as the employer’s breach materially increased the risk above background environmental exposure.

What section 3 changes

• Barker v Corus UK Ltd [2006] UKHL 20 held that, under the Fairchild causation rule, damages should reflect each defendant’s share of the risk they created, which could leave claimants under-compensated if some defendants were insolvent or untraceable.
• Compensation Act 2006, section 3 overrides that for mesothelioma. Where the Fairchild causation rule applies, each “responsible person” (an employer or other party who negligently caused or permitted exposure) is liable for the whole of the damage. Defendants are jointly and severally liable.
• This means a claimant can recover 100% of their damages from any one responsible person. That defendant can then seek contribution from other responsible persons.
• Section 3 does not alter contributory negligence principles. If the claimant’s own fault is relevant, the court can still make a just reduction under the Law Reform (Contributory Negligence) Act 1945.

Contribution and apportionment between defendants and insurers

• After paying the claimant, a defendant can bring a contribution claim against other responsible persons under the Civil Liability (Contribution) Act 1978. The court decides what is “just and equitable,” often looking at factors such as:
  • Duration and intensity of exposure attributable to each defendant
  • Protective measures (or the lack of them)
  • Temporal spread of exposure across employments and sites
• For insurance, Durham v BAI (Run Off) Ltd (the “Trigger” litigation) [2012] UKSC 14 confirmed that, in employers’ liability policies, mesothelioma is treated as “caused” at the time of the exposure for the purpose of triggering cover. Insurers on risk during exposure periods can be called upon.
• In practice, contribution between defendants and/or between their insurers is often allocated by “time on risk” or by relative exposure, but it remains fact-sensitive.

Scope and limits of section 3

• Disease-specific: Section 3 is confined to mesothelioma. It does not apply to other asbestos-related diseases such as asbestosis or lung cancer. For those, ordinary causation rules (or other case law) apply.
• Jurisdiction: It applies in England and Wales and Scotland. The principles have informed insurance and contribution disputes, but local law may differ elsewhere.
• Timing: Section 3 applies regardless of when the exposure occurred. It addresses how damages are assessed and recovered once liability under the Fairchild rule is established.
• Settlement: Paying defendants retain rights to seek contribution from others, even if settlement occurs before judgment, subject to the terms of any settlement and the contribution legislation.

Key Examples or Case Studies

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22

• Issue: Multiple employments with asbestos exposure; medical science cannot identify which exposure caused mesothelioma.
• Held: A claimant need only prove that each defendant’s breach materially increased the risk of mesothelioma.
• Use: Establishes the causation rule specific to mesothelioma.

Barker v Corus UK Ltd [2006] UKHL 20

• Issue: Whether damages should be several and proportionate to the risk contributed by each defendant.
• Held: Yes, at common law. Damages were to reflect each defendant’s relative share of risk.
• Later position: Parliament reversed this outcome for mesothelioma via Compensation Act 2006 s 3, reinstating joint and several liability to protect claimants.

Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10

• Issue: Single employer; whether Fairchild still applies in the presence of background environmental exposure.
• Held: The Fairchild approach applies. A more than minimal increase in risk by the employer suffices; the “doubles the risk” epidemiological test is not mandatory.
• Use: Reinforces the claimant-friendly causation rule in mesothelioma even with one tortfeasor.

Durham v BAI (Run Off) Ltd (Trigger) [2012] UKSC 14

• Issue: Which employers’ liability insurance policies respond in mesothelioma claims.
• Held: Policies triggered by “injury sustained” or “disease contracted” respond to exposure during the policy period.
• Use: Key for identifying the correct insurer(s) to meet judgments and settlements.

Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86

• Issue: Lung cancer from asbestos exposure involving multiple employers.
• Held: Section 3 does not apply to lung cancer. The court applied proportionate recovery (by risk contribution) rather than joint and several liability.
• Use: Shows the limits of section 3 and the continued relevance of Barker outside mesothelioma.

Practical Applications

For claimants

• Build a clear exposure history: job roles, tasks, sites, materials used, and periods of exposure. HMRC employment schedules, witness statements, and company records help.
• Focus on risk increase: show that each defendant’s breach made a more than minimal contribution to risk. Evidence on dust levels, lack of RPE, and poor ventilation is useful.
• Identify insurers early: rely on the Employers’ Liability Tracing Office (ELTO), policy schedules, and broker records.
• Quantify fully: include general damages, past and future care, services (including s 3(5) Administration of Justice Act 1982 in Scotland where relevant), and dependency claims under the Fatal Accidents Act 1976 in death cases.
• Consider interim payments: strong liability evidence plus serious financial need often supports an interim award.
• Settlement strategy: Part 36 offers and global settlements can secure timely payment; section 3 ensures full recovery from any one responsible party.

For defendants and insurers

• Test exposure and breach: explore protective measures, duration/intensity, and any non-negligent exposures. Consider de minimis arguments where appropriate.
• Causation remains Fairchild-based: the issue is material increase in risk, not proof of actual causation. Expert evidence on dose and background exposure can be relevant.
• Contribution planning: if you pay the claim, preserve rights against co-defendants and other insurers. Gather evidence for just and equitable apportionment (time on risk, exposure intensity).
• Insurance coverage: check policy wording, period of cover, and aggregation. Post-Trigger, exposure during the policy period generally engages cover.
• Costs and ADR: joint settlement meetings can align contribution outcomes with the main settlement, reducing satellite litigation.

Summary Checklist

• Know the Fairchild rule: material increase in risk is enough for mesothelioma
• Section 3 restores joint and several liability for mesothelioma claims
• Claimants can recover 100% from any responsible person
• Contribution between defendants is decided on a just and equitable basis
• Section 3 is mesothelioma-specific and applies in England, Wales, and Scotland
• Sienkiewicz confirms Fairchild applies even with one employer
• Trigger clarifies that exposure triggers employers’ liability cover
• Heneghan shows section 3 does not extend to lung cancer
• Contributory negligence can still reduce damages where appropriate
• Early evidence on exposure, insurers, and relative risk is key to outcomes

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