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Judgments - barker (Respondent) v. Corus (UK) plc (Appellants) (formerly barker (Respondent) v. Saint Gobain Pipelines plc (Appellants) and others (Conjoined Appeals)

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

 

on

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 these questions are raised by the appeal in barker v Corus (UK) Plc. Mr barker died of asbestos-related mesothelioma on 14 June 1996. During his working career he had three material exposures to asbestos. The first was for 6 weeks in 1958 while working for a company called Graessers Ltd. The second was between April and October 1962, while working for John Summers Ltd (now Corus (UK) Ltd ("Corus")). The third was for at least 3 short periods between 1968 and 1975, while working as a self-employed plasterer. The first two exposures were in consequence of breaches of duty by the employers and the last is agreed to have involved a failure by Mr barker to take reasonable care for his own safety. Thus, unlike the facts of Fairchild, not all the exposures which could have caused the disease involved breaches of duty to the claimant or were within the control of a defendant. The first question is whether this takes the case outside the Fairchild exception. If it does not, the second question is whether Corus is liable for all the damage suffered by Mr barker's estate and dependants or only for its aliquot contribution to the materialised risk that he would contract mesothelioma. Moses J decided that the case was within the Fairchild exception and that Corus was liable jointly and severally with Graessers Ltd, but subject to a 20% reduction for Mr barker's contributory negligence while he was self-employed. As Graessers Ltd is insolvent and without any identified insurer, Corus is unable to recover any contribution. The Court of Appeal ((Kay, Keene and Wall LJJ) agreed with the judge on both points: see barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545; [2005] 3 All ER 661.

    4.  In the other two appeals, all the exposures to asbestos were in breach of duties owed by employers or occupiers and there was no dispute that the cases fell within the Fairchild exception. The only question was whether liability was joint and several or only several. In Smiths Dock Ltd v Patterson, Mr Patterson, who died of mesothelioma on 3 May 2002 at the age of 93, had been during his working life regularly exposed to asbestos, in breach of duty, by 4 employers: Smiths Dock Ltd, Vickers Armstrong Ltd, Swan Hunter and Hawthorne Leslie. The latter two companies, both of which are insolvent and whose insurers are also insolvent, accounted between them for 83.22% of the period for which exposure took place. The first two were responsible, in roughly equal shares, for the rest. The question was whether they were nevertheless jointly and severally liable for the whole damage. In Murray v BS Hydrodynamics Ltd, Mr Murray, who died of mesothelioma on 19 November 1999 at the age of 75, spent most of his working life in the Tyne shipyards and had been exposed to asbestos, in breach of duty, by a considerable number of employers. The five joined as defendants account for 42.5% of the period of exposure; the others are insolvent and uninsured. Again the question is whether the solvent defendants are jointly and severally liable for the full damage. In both cases the judges and the Court of Appeal followed the decision in barker's case and decided that they were.

    The limits of Fairchild

    5.  My Lords, the opinions of all of your Lordships who heard Fairchild expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. It is only natural that, the dyke having been breached, the pressure of a sea of claimants should try to enlarge the gap. Indeed, an attempt to extend the principle of liability for increasing the likelihood of an unfavourable outcome to the whole of medical negligence was narrowly rejected in Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176. But each member of the Committee in Fairchild [2003] 1 AC 32 stated the limits of what he thought the case was deciding in slightly different terms. Thus Lord Bingham of Cornhill at p 40, para 2, formulated the question before the House as follows:

    "If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B?

    6.  To this question he gave, at p 68, para 34, the answer that C was entitled to recover against both A and B, but emphasised that his opinion was "directed to cases in which each of the conditions specified in (1)-(6)…is satisfied and to no other case."

    7.  Lord Nicholls of Birkenhead, at p 70, para 43, was less prescriptive, saying only that "considerable restraint is called for in any relaxation of the threshold 'but for' test of causal connection", that "policy questions will loom large" and that it was "impossible to be more specific".

    8.  My own opinion, at p 74, para 61, identified five features which were said cumulatively to justify the exception:

    "First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting that disease. Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. Fifthly, the employee has contracted the disease against which he should have been protected."

    9.  Lord Hutton, who considered that the exception did not impose liability for exposure which merely increased the likelihood that the claimant would contract the disease but defined the circumstances in which a court would, as a matter of law, infer that the exposure had caused ("materially contributed to") the disease, said, at p 91, para 108, that such an inference should be drawn in:

    "cases such as the present ones where the claimant can prove that the employer's breach of duty materially increased the risk of him contracting a particular disease and the disease occurred, but where in the state of existing medical knowledge he is unable to prove by medical evidence that the breach was a cause of the disease."

    10.  Finally, my noble and learned friend Lord Rodger of Earlsferry said, at pp 118-119, paras 169-170, that he would:

    "tentatively suggest that certain conditions are necessary, but may not always be sufficient, for applying the principle. All the criteria are satisfied in the present cases…First, the principle is designed to resolve the difficulty that arises where it is inherently impossible for the claimant to prove exactly how his injury was caused. It applies, therefore, where the claimant has proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it…Secondly, part of the underlying rationale of the principle is that the defendant's wrongdoing has materially increased the risk that the claimant will suffer injury. It is therefore essential not just that the defendant's conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself. Thirdly, it follows that the defendant's conduct must have been capable of causing the claimant's injury. Fourthly, the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant's wrongdoing…By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant's wrongful act or omission…Fifthly, this will usually mean that the claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant's wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way. … Sixthly, the principle applies where the other possible source of the claimant's injury is a similar wrongful act or omission of another person, but it can also apply where… the other possible source of the injury is a similar, but lawful, act or omission of the same defendant. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence."

    11.  The assistance which can be derived from these various formulations is limited. No one expressly adverted to the case in which the claimant was himself responsible for a significant exposure. Lord Bingham's formulation requires that all possible sources of asbestos should have involved breaches of duty to the claimant; Lord Rodger allowed for a non-tortious exposure by a defendant who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. On the other hand, no one thought that the formulations in Fairchild were the last word on the scope of the exception. Lord Bingham said, at p 68, para 34:

    "It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise."

    Now such cases have arisen.

    The reinterpretation of McGhee

    12.  Given that neither of the issues which I have identified arose or was argued in Fairchild, counsel on both sides very sensibly did not place great weight upon a close textual analysis of the way their Lordships formulated the exception. Perhaps more profitable is an examination of what the House said about its earlier decision in McGhee v National Coal Board [1973] 1 WLR 1. The facts of this case are too well known to need detailed repetition.

 
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