Thursday, May 04, 2006

Asbestos victims to receive reduced damages - liability of employers apportioned according to the 'degree of contribution' to chance of disease

The liability of employers (or, more precisely, their insurers) who exposed their employees to asbestos ought to be apportioned according to the 'degree of contribution' to the chance of contracting mesothelioma, held the House of Lords yesterday.

On May 3 the House of Lords gave a judgement in the cases Barker v Corus (formerly Saint Gobain Pipelines plc, Murray v British Shipbuilders (Hydrodynamics) Ltd and Patterson v Smiths Dock Ltd and others (to be published - [2006] All ER (D) 23 (May)) . The judgement is bound to have a significant impact on cases involving injuries caused by asbestos and damages awarded in such cases. Very often people suffering from diseases such as mesothelioma are exposed to asbestos a number of times during their lifetime and while working for different employers - thus establishing causal link is very problematic. The nature of this asbestos-caused disease is such that it is impossible to determine with scientific certainty when exactly the disease was contracted. The claimants here suffered from mesothelioma, and it was established that they were explosed to asbestos fibres by different employers (and one of them, additionally, while being self-employed). Contrary to the trend set out by the judgement in Fairchild v Glenhaven Funeral Services [2002] UKHL 22 the House was of the opinion that the defendants ought to be liable for claimant's injuries only to the extent to which they shared the risk of contributing to the chance of contracting the disease with other defendants. While Fairchild modified the approach to causation so that a proof that a defendant's wrongdoing 'had materially increased the risk of contracting the disease' was sufficient to establish this defendant's liability for the claimant's injuries, Barker v Corus seems to have reversed this tendency. The House stressed that in this case liability was imposed exceptionally (it was not certain which one of the defendants actually caused the injury), and thus it was fair that defendants shared liability. The judgement will cause reduction in the amount of damages the claimants receive (for instance because some of the employers are insolvent).

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