Barker v Corus: Dividing the Indivisible
Barker v Corus: Dividing the Indivisible
Barker v Corus (UK) PLC and associated cases [2006] UKHL 20Background
1. Personal injuries have traditionally been divided into two categories: divisible and indivisible.
2. A divisible injury is a condition that can have more than one cause, each cause cumulatively increasing the degree of the condition (e.g. asthma). An indivisible injury is an “all or nothing” condition where it is not possible to attribute different parts of the damage to different causes (e.g. a broken leg).
3. A defendant’s liability for a divisible injury is proportionate to the extent to which he is responsible for that injury. Thus, if on the evidence a given defendant’s wrongs caused 40% of the overall condition, that is the extent of that defendant’s liability for that condition.
4. Conversely, a defendant’s liability for an indivisible injury is joint and several for its entirety. A claimant can recover for all the effects of the condition from any defendant who has tortiously caused it and leave it up to that defendant to recover a contribution from his co-tortfeasor(s).
5. This distinction is of particular practical importance where one or more of the defendants no longer exists, cannot be traced, is uninsured, or otherwise is unable to satisfy a judgment. This is often the case in asbestos claims due the inevitably lengthy period between exposure and proceedings. In the case of an indivisible injury, the remaining solvent defendants will have to bear the liability of the defunct ones. In the case of a divisible injury the shortfall will result in reduced compensation for the claimant.
6. Mesothelioma is a fatal cancer caused almost exclusively by asbestos exposure. It is undoubtedly an indivisible injury.
7. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 A.C. 32 it was held that, where a claimant could establish that he had mesothelioma as the result of being tortiously exposed to asbestos by two or more defendants, but could not establish on the balance of probabilities which one of them had caused the disease, he was nevertheless had a good cause of action against each exposer for materially increasing the risk of the disease.
Barker
8. The primary issue in these appeals was whether liability under Fairchild for mesothelioma is joint and several for the whole of the loss (as had previously been thought to be the case), or proportionate only to the extent to which a given defendant contributed to the risk.
9. The majority (Lords Hoffman, Scott, Walker and Baroness Hale) held that liability for mesothelioma under Fairchild is for the risk of harm and therefore a defendant’s liability should be in proportion to the contribution he has made to the risk of the harm occurring. Whilst mesothelioma was indivisible, the risk of it could and should be divided.
10. Lord Roger dissented. He held the liability under Fairchild was not for the risk of harm but for making a material contribution to causing the disease. His view was thus that these Fairchild defendants were joint and severally liable as would be any other tortfeasor in respect of an indivisible injury.
11. The secondary issue, arising only in the case of Barker itself, was whether the fact the deceased was self-employed during part of his period of asbestos exposure negated liability under Fairchild. Mr Barker had been tortiously exposed to asbestos, but was also exposed whilst self-employed. He died of mesothelioma. The defendant argued that this took him outside Fairchild. The same majority rejected this argument on the basis that, as Fairchild gave a cause of action for material increase in the risk of damage, it was irrelevant that some of the exposure was non-tortious (whether it be by natural causes, human agency or the claimant himself).
12. Lord Roger held that on his view of Fairchild liability as joint and several, a period of material exposure to asbestos by a deceased himself would have negated the defendant’s liability. However, he agreed that on the majority holding the liability was proportionate Fairchild applied.
Comment
13. The decision on the primary issue is a radical and somewhat surprising result, both in terms of jurisprudence and practical effects.
14. The jurisprudence is radical because it identifies that Fairchild created a novel category of personal injury damage. This is at variance with the previously generally accepted view that Fairchild did no more than relax traditional causation rules in mesothelioma claims to meet the injustice of their strict application.
15. In broad terms the point is that whatever policy giveth policy can also taketh away. The House having in Fairchild moved the goalposts to give mesothelioma claimants viable causes of action they would not otherwise have had, has moved them again to mitigate the full effects of its earlier decision (to “smooth the roughness of the justice”, paragraph 43 per Lord Hoffman).
16. However, the decision remains highly contentious as policy. The result was bound to inflict fairness on either claimants (who would be undercompensated) or defendants (who would be overpaying). The House thus had to choose between the two. In the circumstances it is perhaps somewhat surprising the House decided that the lesser evil was to undercompensate workers who had died a painful death and their families than to overburden employers who had tortiously exposed their employees to potentially lethal substances and their insurers.
17. The practical effect for defendants is that their liability under Fairchild is restricted to the extent of the exposure for which they are tortiously responsible. As well as being directly beneficial, this has the added benefit of obviating any need to bring Part 20 proceedings against co-tortfeasors.
18. The practical effect for claimants is that mesothelioma claims based on Fairchild will only succeed against a given defendant to the extent of their exposure, which will have to be quantified with regard to length and intensity of exposure (as has been the case with claims for asbestosis and pleural thickening). Compensation will be reduced when one or more defendants or insurers are unable to satisfy a judgment. In order to maximize compensation claimants will have to pursue all exposers, with inevitably increased delay, complexity and cost.
19. It is thus with no small irony that on 16 May 2006, less than two weeks after Barker John Hutton, Secretary of State for Work and Pensions, announced his intention to work in partnership with insurers to ensure faster compensation for mesothelioma sufferers and their families in the following terms:
"No amount of money will ever compensate individuals and families for the suffering and loss caused by mesothelioma, but it is doubly important that the process for claiming compensation does not add to the distress experienced by individuals and their families ... our aim is to ensure that wherever possible sufferers of mesothelioma can receive compensation whilst they themselves can still benefit from it …”
Mr Hutton is in the process of consulting interested parties (ABI, APIL, DCA) and has promised to report back before Parliament rises for the summer.
20. The decision in Barker is not easily reconcilable with the government’s stated aims. There is thus a possibility that its effects might be reversed or mitigated by statute. It is not possible to predict how this might develop, although Allan Gore QC (leading counsel for one of the claimants in Barker and former president of APIL) has suggested (letter to The Times 30 May 2006) either a straight reversal or the institution of a fund of last resort along the lines of the MIB. In the meantime, however, litigants and lawyers must deal with the repercussions of Barker as it stands.
21. As an addendum it is worth considering whether, in a case where it can be established that one defendant was responsible for more than 50% of the exposure, and thus on the balance of probabilities caused the mesothelioma, it could be argued that the claimant should recover from that defendant for the entirety of the indivisible injury in the normal way. It could be said that in such a case a claimant would not have to rely upon Fairchild to succeed, and thus Barker would arguably have no application. (There would nevertheless be tactical considerations about the desirability of pursuing one defendant only rather than running Fairchild claims in the alternative.)
22. A further point is whether, if this argument were correct, the primary defendant could recover a contribution from other exposers (who would not on the balance of probabilities have caused the mesothelioma). In order to do so the primary defendant would have to establish that his liability for have caused the mesothelioma and the other exposers’ liability under Fairchild for the risk of harm constituted “same damage” within the meaning of the Civil Liability (Contribution) Act 1978. Barker suggests that they would not (see Lord Hoffman’s dictum at paragraph 46). If this is right then the primary defendant would be worse off post-Barker than previously.