Damages in an indivisible injury case - mesothelioma
Barker v Corus UK Plc and others [2006] UKHL 20, Lords Hoffmann, Scott, Rodger, Walker and Baroness Hale, 3 May 2006
Fairchild v Glenhaven Funeral Services created an exception to the rule that, on the balance of probability, the defendant's conduct causes the damage; for in respect of the disease of mesothelioma there is no scientific basis to support a finding that a defendant materially contributed to a claimant's injury (see [2001] Gazette, 5 July, 37). Therefore, the Law Lords decided that the causing of a material increase in the risk of injury would suffice.
Subsequent to Fairchild, the issues pursued in the instant appeals were:
In respect of the first issue, the Law Lords found that non-tortious exposure did not remove a case from the Fairchild exception.
The key issue, and the one that is of particular interest for practitioners and insurance companies, is that of apportionment. Mesothelioma is an indivisible injury - each exposure increases the risk of contraction of the condition but does not increase the disability. Previously, where there was more than one negligent party, each was held jointly and severally liable and an injured person could pursue an action against a single defendant and succeed in damages in full.
By this decision, the majority (4:1) introduced apportionment in respect of indivisible injury claims. Lord Hoffmann, giving the lead judgment, found that because liability had exceptionally been imposed to assist the injured party in respect of causation, in instances where a defendant 'may' have caused the harm but, when on the balance of probabilities, it could not be proved that he had, fairness dictates that if more than one party is responsible then damages should be divided between them. He interpreted previous decisions of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 and Fairchild [2003] 1 AC 32, as not suggesting that materially increasing the risk of injury equated to a material contribution to the illness.
Lord Rodger, dissenting, admonished the majority for effectively 'rewriting the key decisions in McGhee and Fairchild' to achieve the position constructed by Lord Hoffmann. He cited Lord Bingham in Fairchild as stating clearly that materially increasing the risk did equate to a material contribution to injury. He did not agree that apportionment should apply. He adopted the 'scornful' view of the judge in Arneil v Paterson [1931] AC 560, that if an indivisible injury claim is apportioned, the result could be that a defendant 'one-fifth killed the victim'. He emphasised why this case was brought by the appellants; namely that in claims involving multiple tortious exposures caused by the lengthy latency period between exposure to asbestos fibres and contraction of mesothelioma, some of the potential defendants would no longer be solvent. The remaining defendants' 'only hope of minimising the amount they have to pay out by way of damages is to have liability of the claimant apportioned among the wrongdoers'.
However, Lord Hoffmann's view was strongly supported by Lord Scott, who argued that joint and several liability is based on the fact that each tortfeasor has committed a breach of duty that has been a cause of the indivisible damage. No such finding can be made in a Fairchild kind of case and, therefore, imposing joint and several liability on Fairchild defendants is inappropriate.
The practicalities of this decision were barely touched on. Lord Hoffmann, rather naively perhaps, having only referred to 'the intensity of exposure' and 'the type of asbestos' as factors influencing apportionment 'hoped' that those conducting asbestos litigation would 'devise practical and economic criteria' for dealing with such cases.
Lord Scott, having stated that apportionment is 'an issue of fact to be decided on the evidence' then referred to duration, intensity and type of exposure. The fact is that the factors influencing apportionment are duration, extent and frequency of exposure together with type, and to properly apportion requires expensive engineering evidence. Presciently, Lord Rodger in Fairchild on the issue of apportionment, which was fleetingly mentioned by three of their Lordships as the case was concerned with causation rather than damages, stated: 'Indeed it was said that no such assessment, even on a rough basis, was possible.'
Only a matter of months ago, Lady Justice Smith in Rothwell, Grieves & others v Chemical and Insulating company, FT Everard & Sons and others [2006] EWCA Civ 27, identified the reasons why the costs in asbestos injury cases are so high. Therefore, the effect is that the costs of conducting this litigation will increase. Costs will not be reduced as a result of this decision. But more importantly, particularly for a dying man, is the fact that cases will necessarily take longer.
Lord Hoffmann's judgments are, in the main, infinitely beguiling yet, in terms of practical guidance, absolutely elusive. This judgment is simultaneously familiar yet alien. He may be perceived as a beacon of judicial conscience but, while one pictures an image of him standing sentinel at the threshold of the virtues of fairness and moral responsibility, this judgment leaves the dying man/widow at the risk of severe under-compensation for the ultimate loss - life itself.
The reality is that the defensive instincts of large capitalist institutions have been permitted to prevail at the expense of those suffering from asbestos-related cancers, and who, by their nature, mostly sit stoically bound in the huge chains created by the illnesses to which the defendants have exposed them. Something by way of statutory intervention must be done for those people.
By Simon Allen, Russell Jones & Walker, Sheffield
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