Barker (Respondent) v. Corus (UK) plc (Appellants) (formerly Barker (Respondent) v. Saint Gobain Pipelines plc (Appellants)) Murray (widow and executrix of the estate of John Lawrence Murray (deceased)) (Respondent) v. British Shipbuilders (Hydrodynamics) Limited (Appellants) and others and others (Appellants) Patterson (son and executor of the estate of J Patterson (deceased)) (Respondent) v. Smiths Dock Limited (Appellants) and others (Conjoined Appeals), (2006)

Status: [2006] UKHL 20

Linked as:

Extract

HOUSE OF LORDS

SESSION 2005-06

[2006]

UKHL 20

on appeal

from [2004] EWCA Civ 545

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

barker (Respondent) v. Corus (UK) plc (Appellants) (formerly

barker (Respondent) v. Saint Gobain Pipelines plc (Appellants))

Murray (widow and executrix of the estate

of John Lawrence

Murray (deceased)) (Respondent) v. British Shipbuilders

(Hydrodynamics) Limited (Appellants) and

others and others

(Appellants)

Patterson (son and executor of the estate

of J Patterson

(deceased)) (Respondent) v. Smiths Dock Limited (Appellants)

and

others

(Conjoined Appeals)

Appellate

Committee

Lord

Hoffmann

Lord

Scott of Foscote

Lord

Rodger of Earlsferry

Lord

Walker of Gestingthorpe

Baroness

Hale of Richmond

Counsel

Appellants:

Jeremy Stuart-Smith QC

Charles Feeny

Jayne La Grua

(Instructed by Berrymans Lace Mawer for Corus and

Eversheds for Smiths Docks and

British Shipbuilders)

Respondents:

For barker

David Allan QC

Peter Cowan

(Instructed by John Pickering & Partners)

For

Patterson

Allan Gore QC

Nigel Lewers

(Instructed by Robinson & Murphy)

For Murray

David Allan QC

Peter Cowan

(Instructed by Thompsons)

Hearing dates:

13 and 14 March 2006

WEDNESDAY 3 maY 2006

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

barker (Respondent) v. Corus (UK) plc (Appellants) (formerly barker (Respondent) v. Saint Gobain Pipelines plc (Appellants)

Murray (widow and executrix of the estate of John Lawrence Murray (deceased)) (Respondent) v. British Shipbuilders (Hydrodynamics) Limited (Appellants) and others and others

Patterson (son and executor of the estate of J Patterson (deceased)) (Respondent) v. Smiths Dock Limited (Appellants) and others

(Conjoined Appeals)

[2006] UKHL 20

LORD HOFFMANN

My Lords,

Fairchild

1. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 the House decided that a worker who had contracted mesothelioma after being wrongfully exposed to significant quantities of asbestos dust at different times by more than one employer or occupier of premises could sue any of them, notwithstanding that he could not prove which exposure had caused the disease. All members of the House emphasised the exceptional nature of the liability. The standard rule is that it is not enough to show that the defendant's conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant's conduct did cause the damage in the sense that it would not otherwise have happened. In Fairchild, the state of scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. A claim against any person responsible for any such exposure would therefore not satisfy the standard causal requirements for liability in tort. But the House considered that, in all the circumstances of the case, that would be an unjust result. It therefore applied an exceptional and less demanding test for the necessary causal link between the defendant's conduct and the damage.

The issues

2. These three appeals raise two important questions which were left undecided in Fairchild. First, what are the limits of the exception? In Fairchild the causal agent (asbestos dust) was the same in every case, the claimants had all been exposed in the course of employment, all the exposures which might have caused the disease involved breaches of duty by employers or occupiers and although it was likely that only one breach of duty had been causative, science could not establish which one it was. Must all these factors be present? Secondly, what is the extent of liability? Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease - a risk which is known to have materialised.

The three cases

3. Both of thes...

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