Mesothelioma claims: proportionate liability (Barker, Murray, Patterson)
Barker v Corus (UK) plc Patterson v Smiths Dock Limited Murray v British Shipbuilders Note of judgment in House of Lords 3 May 2006 1. These appeals raised two main issues: (a) The extent of the liability of defendants pursuant to Fairchild. Are they jointly and severally liable for the whole of the loss, or is their liability proportionate? (b) Does the Fairchild principle of liability for mesothelioma claims apply where part of the deceased’s exposure to asbestos occurred during a period of self-employment? 2. 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. 3. Lord Roger dissented on the first issue. He held the liability under Fairchild was not for the risk of harm but for making a material contribution to causing the disease, expressing the opinion that the majority were “not so much reinterpreting as rewriting the key decisions in McGhee and Fairchild”. He would therefore have held that defendants are liable in solidum like any other concurrent tortfeasors whose separate wrongful acts combine to produce indivisible harm. 4. Quantification of the risk and therefore the size of a defendant’s contribution is likely to be assessed according to time of exposure for which he is responsible, intensity of exposure and the type of asbestos. 5. The second issue arose in the case of Barker alone. He had been exposed to asbestos by two employers who were both at fault. He was also exposed during a period of self-employment. Corus argued that this took him outside the Fairchild principle because there had been a period of exposure for which only he was responsible. The majority rejected this approach, holding that Fairchild gave a cause of action for material increase in the risk of damage and it was therefore irrelevant that some of the exposure was tortious or non-tortious, by natural causes, human agency or the claimant himself. 6. Lord Roger held that if Fairchild liability had been joint and several, a period of material exposure to asbestos by a deceased himself would have taken him outside it, but since the majority held the liability was proportionate, this involved such a reduction in the scope of the liability that it was just to apply the Fairchild rule. Allan Gore QC Nigel Lewers Instructed by Robinson & Murphy on behalf of Patterson 3 May 2006
Richard Methuen QC is a 'good team player who doesn't mind rolling his sleeves up and getting his hands dirty' (Legal 500 - 2006)
