barker (Respondent) v. Corus (UK) plc (Appellants) (formerly barker (Respondent) v. Saint Gobain Pipelines plc (Appellants) and others (Conjoined Appeals)
43. In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.
An American analogy
44. Courts in the United States have similarly imposed several liability for the chance that the defendant, among others, was the manufacturer of the drug DES which caused long-delayed injury to the daughters of women who took it during pregnancy. In these cases it was impossible to prove who had been the manufacturer of the particular drug which the mother had ingested (during sales over 24 years, there had been 300 manufacturers in the market) and the courts of California and New York decided to apportion liability according to national market share. That was a way of dealing with the particular form of uncertainty which arose in those cases and it obviously has no application to injury caused by exposure to asbestos. But the similarity lies in the fact that the defendants were held liable for the chance that their drug had caused the injury. In Brown v Superior Court (1988) 751 P 2d 470, 486 the Supreme Court of California, referring to its earlier judgment in Sindell v Abbott Laboratories (1980) 607 P 2d 924, which had created the market share doctrine, decided that the liability of each manufacturer should be several:
45. In Hymowitz v Eli Lilly & Co (1989) 539 NE 2d 1069 the Court of Appeals of New York adopted a similar rule, Wachtler CJ said, at p 1078:
Joint tortfeasors and contributory negligence
46. The effect of the Civil Liability (Contribution) Act 1978 is that if each defendant is treated as having caused the mesothelioma as an indivisible injury and pays the damages in full, he will be able to recover contribution to the extent that he has paid more than his fair share of the responsibility from such other tortfeasors as are traceable and solvent. But he will in effect be a guarantor of the liability of those who are not traceable or solvent and, as time passes, the number of these will grow larger. Experience in the United States, where, for reasons which I need not examine, the DES rule of several liability has not been applied to indivisible injuries caused by asbestos, suggests that liability will progressively be imposed upon parties who may have had a very small share in exposing the claimant to risk but still happen to be traceable and solvent or insured: see Jane Stapleton, "Two causal fictions at the heart of US asbestos doctrine", (2006) 122 LQR 189. That would, as I have said, not be unfair in cases in which they did actually cause the injury. It is however unfair in cases in which there is merely a relatively small chance that they did so.
47. Similarly, if the defendant is deemed to have caused the mesothelioma but the claimant, like Mr barker, was himself responsible for a significant period of exposure, the court may find that he did not take adequate care for his own safety or was in breach of safety regulations and, as Moses J did in the barker case, reduce the damages for contributory negligence. On the other hand, if liability is several, there is no question of contributory negligence any more than of contribution. A defendant is liable for the risk of disease which he himself has created and not for the risks created by others, whether they are defendants, persons not before the court or the claimant himself.
48. Although the Fairchild exception treats the risk of contracting mesothelioma as the damage, it applies only when the disease has actually been contracted. Mr Stuart-Smith QC, who appeared for Corus, was reluctant to characterise the claim as being for causing a risk of the disease because he did not want to suggest that someone could sue for being exposed to a risk which had not materialised. But in cases which fall within the Fairchild exception, that possibility is precluded by the terms of the exception. It applies only when the claimant has contracted the disease against which he should have been protected. And in cases outside the exception, as in Gregg v Scott  2 AC 176, a risk of damage or loss of a chance is not damage upon which an action can be founded. But when the damage is apportioned among the persons responsible for the exposures to asbestos which created the risk, it is known that those exposures were together sufficient to cause the disease. The damages which would have been awarded against a defendant who had actually caused the disease must be apportioned to the defendants according to their contributions to the risk. It may be that the most practical method of apportionment will be according to the time of exposure for which each defendant is responsible, but allowance may have to be made for the intensity of exposure and the type of asbestos. These questions are not before the House and it is to be hoped that the parties, their insurers and advisers will devise practical and economical criteria for dealing with them.
49. In the barker case I would therefore allow the appeal, but only to the extent of setting aside the award of damages against Corus (UK) Ltd and remitting the case to the High Court to redetermine the damages by reference to the proportion of the risk attributable to the breach of duty by John Summers Ltd. I would likewise allow the appeals in the other two cases and remit them to the County Court to determine the damages by reference to the share of risk attributable to the breaches of duty by the defendants.
LORD SCOTT OF FOSCOTE
50. I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Hoffmann and am in complete agreement both with his conclusions and with his reasons for reaching them. In view, however, of the importance of these appeals for the purpose of further defining the nature and the limits of the principle for which the decision of this House in Fairchild v Glenhaven Funeral Services Ltd  1 AC 32 stands as authority, I want to express in my own words my reasons for coming to the same conclusions.
51. It is trite law, learned by all of us in our days as law students, that a remedy in damages for the tort of negligence requires the claimant to establish that the defendant owed him or her a duty of care, that the defendant was in breach of that duty of care and that the breach of duty caused the damage or loss of which the claimant complains. In Fairchild three appeals were brought before the House. The critical issue was the same in each. In the Fairchild appeal the claimant's widow was able to show that over her deceased husband's working life he had been exposed to asbestos dust by a number of different employers. She was able to satisfy the court that each of these employers had owed him a duty of care and that his exposure at each working place to asbestos dust had constituted a breach by each of these employers successively of the duty that each of them had owed him. The exposure had been a breach of duty because of the risk that exposure to asbestos dust would lead to his contracting mesothelioma, a disease, usually fatal, that may not manifest itself until many years after the exposure. Mr Fairchild did contract the disease and died because of it. It was common ground that the disease had been caused by exposure to asbestos dust at his workplace while working for one or other of his employers. But it was not possible by any known medical science to identify which of the employers had been his employer when he had inhaled the asbestos fibres that in the event had caused the disease. Nor was it possible by any known medical science to eliminate any employer from those who might have been the employer at the relevant time. On the other hand the expert medical evidence did justify the conclusion that his employer at the relevant time must have been one, and may have been more than one, of the employers (see the discussion of the various possibilities in para 7 of the opinion given by Lord Bingham of Cornhill). The situation, therefore, was that Mrs Fairchild was unable to prove on any balance of probabilities which employer was the employer whose breach of duty had caused her husband's mesothelioma. Traditional jurisprudence would have led to the failure of her action against each of them. She would have failed because she could not establish against any employer that the breach of duty that that employer had committed had caused the mesothelioma from which her husband had died.
52. This House remedied the evident unfairness of the situation by expanding the boundaries of tortious liability. That was done by building on the earlier decision of the House in McGhee v National Coal Board  1 WLR 1, a decision carefully analysed by my noble and learned friend Lord Bingham of Cornhill in paras 17 to 21 (inclusive) of his opinion in Fairchild. In para 21 Lord Bingham took McGhee as authority for the proposition that, on the facts of that case, no distinction was to be drawn between making a material contribution to causing the disease that the employee had contracted and materially increasing the risk of his contracting it. Applying that proposition to Fairchild facts Lord Bingham, at p 68, para 34, concluded that it was
The other members of the House all reached the same conclusion and, with the exception, perhaps, of Lord Hutton, for essentially the same reasons. Lord Hutton took the view that an inference of actual causative effect should be drawn where it could be shown that the breach of duty had materially increased the risk of the victim contracting the disease that he had eventually contracted (see para 108). But the other members of the House were prepared to impose liability in cases where Lord Bingham's six conditions (set out by Lord Hoffmann in para 5 of this opinion in the present case) were met, not on the basis of an inference of actual causation but on the basis that the causing of a material increase in risk would suffice (see Lord Nicholls of Birkenhead, paras 41 and 45, Lord Hoffmann, paras 47 and 67 and Lord Rodger of Earlsferry, para 168).
53. It is essential, in my opinion, to an appreciation of the effect of the Fairchild decision to keep firmly in mind that liability was not imposed on any of the defendant employers on the ground that the employer's breach of duty had caused the mesothelioma that its former employee had contracted. That causative link had not been proved against any of them. It was imposed because each, by its breach of duty, had materially increased the risk that the employee would contract mesothelioma. That, coupled with the fact that mesothelioma had been contracted and that it was not possible to tell when the fatal inhalation had taken place, justified, in their Lordships' view, the imposition of liability on each employer who had contributed to the risk.
54. It was recognised in Fairchild that the principle formulated for the purposes of the decision in that case, a development of the proposition on which the decision in McGhee had been based, might require further refinement when other cases came up for decision. Lord Bingham said, at p 68, para 34, that
Gregg v Scott  2 AC 176 was such a case and so are the cases now before the House.
55. Gregg v Scott was a case where a patient had a lump under an arm. He consulted a doctor about it but was told it was benign and that no remedial action was called for. This was an incorrect and negligent response. Later the malignant quality of the growth was discovered and the claimant was treated accordingly. But the delay, for which the negligence of the first doctor was responsible, had allowed the growth to develop and spread and had greatly reduced the claimant's prospects of long term survival. He sued for damages. He asked that the extent of the increase in the risk of death from the cancer, an increase caused by the doctor's negligence, be reflected in an award of damages. The question was whether the increase in risk could constitute damage for the purposes of the tort of negligence. Fairchild was relied on as authority for the proposition that it could do so. The analogy with Fairchild was, however, not accepted by the House. A majority held that a claim for damages for clinical negligence required proof, on a balance of probabilities, that the negligence complained of had been the cause of an adverse outcome and that an increase in the chance of an unfavourable outcome did not constitute a recoverable head of damage. Lord Nicholls of Birkenhead and Lord Hope of Craighead dissented but neither of them regarded Fairchild as providing any assistance to the claimant. Lord Nicholls, who would have allowed a "diminution in prospects" claim, said, at p 191, para 51, that
And Lord Hope did not mention Fairchild at all.
56. Lord Hoffmann, in Gregg v Scott  2 AC 176, expressly restricted the Fairchild decision to cases where there was a causation difficulty in connecting the breach of duty to the eventual outcome. He said, at pp 195-196, para 78, that
He said, at p 196, para 79:
Lord Phillips of Worth Matravers MR, too, referred to Fairchild as an exception to the normal requirement of proof of a causal connection between the breach of duty and the injury (see para 174).
57. My Lords, the importance of Gregg v Scott for present purposes is that Fairchild was treated as an exception to the normal requirement of a proved causative link between the breach of duty and the damage for which tortious damages are claimed. Fairchild is explained as a pragmatic judicial response to what would otherwise have been an unjust and unsatisfactory denial of a remedy to a mesothelioma sufferer whose disease had been caused by one or other of a number of wrongdoers (in the sense of persons shown to have been in breach of duty) each of whose breach of duty may have caused the disease, and could not be shown not to have done so, but could not be shown to have done so. Fairchild cannot, therefore, be taken to have established an overarching principle in the law of tort. Its narrow scope was, in my respectful opinion, rightly recognised by Lord Hoffmann in his comments in Gregg v Scott that I have cited.
58. The present appeals ask the following questions about the scope of the Fairchild decision:
59. The answers to the first two questions depend, in my opinion, on understanding that the Fairchild defendants were not held liable for causing the eventual damage. In relation to none of them was it proved, nor could it be proved, that that defendant's breach of duty had caused the damage, and thereby brought about the fatal outcome. A defendant in a Fairchild type of case is held liable for having materially contributed to the risk of the eventual outcome. That this is so is, to my mind, apparent from the opinions delivered in Fairchild  1 AC 32 and is confirmed by Lord Hoffmann's references to Fairchild in Gregg v Scott  2 AC 176. Accordingly, in my opinion, it can make no logical difference to the liability of a Fairchild defendant, save as to quantum (a matter addressed by the third question), whether there are periods of exposure to asbestos dust, or to whatever the potentially injurious agent may be, during which the victim is not in the employment of a negligent employer. Liability is imposed by Fairchild on a negligent employer because that employer has, by allowing the victim to be exposed to the injurious agent in question, materially increased the risk that the employee will contract the disease or be afflicted by the condition attributable to that injurious agent. The fact that there may have been periods of exposure during which the victim was employed by an employer who had not been in breach of duty, or during which the victim had been self-employed, or during which the victim had not been working for reward in any capacity, does not detract from the exposure for which the negligent employers had been responsible. My answers to questions (1) and (2) would, therefore, in each case be 'yes'.
60. That brings me to the third question. It is a well established principle in the law of tort that if more than one tortfeasor causes the damage of which complaint is made, and if it is not possible to attribute specific parts of the damage to a specific tortfeasor or tortfeasors in exoneration, as to those parts of the damage, of the other tortfeasors, the tortfeasors are jointly and severally liable for the whole damage. A pedestrian on the pavement injured by a collision between two cars both of whose drivers were driving negligently can hold either driver liable for his or her injuries. The apportionment of liability between the two negligent drivers is no concern of the victim.
61. If the Fairchild principle were based upon the fiction that each Fairchild defendant had actually caused the eventual outcome, the analogy with tortfeasors each of whom had contributed to an indivisible outcome would be very close. But Fairchild liability is not based on that fiction. It is based on the fact that each negligent defendant has wrongfully subjected the victim to a period of exposure to an injurious agent and has thereby, during that period, subjected the victim to a material risk that he or she will contract the disease associated with that agent. Each successive period of exposure has subjected the victim to a further degree of risk. If, in the event, the victim does not contract the disease, no claim can be made for the trauma of being subjected to the risk (see Gregg v Scott  2 AC 176). But if the victim does contract the disease the risk has materialised. If the degree of risk associated with each period of exposure, whether under successive employers or during self-employment or while engaged in domestic tasks, were expressed in percentage terms, the sum of the percentages, once the disease had been contracted, would total 100 per cent. But the extent of the risk for which each negligent employer was responsible and on the basis of which that employer was to be held liable would be independent of the extent of the risk attributable to the periods of exposure for which others were responsible. The relationship between the various negligent employers seems to me much more akin to the relationship between tortfeasors each of whom has, independently of the others, caused an identifiable part of the damage of which the victim complains. The joint and several liability of tortfeasors is based upon a finding that the breach of duty of each has been a cause of the indivisible damage for which redress is sought. No such finding can be made in a Fairchild type of case and the logic of imposing joint and several liability on Fairchild defendants is, in my opinion, absent. Moreover, Fairchild constitutes an exception, perhaps an anomalous one, to the causation principles of tortious liability. It should not, therefore, be found to be surprising if consequential adjustments to other principles of tortious liability become necessary.
62. I would, therefore, hold that the extent of the liability of each defendant in a Fairchild type of case, where it cannot be shown which defendant's breach of duty caused the damage but where each defendant, in breach of duty, has exposed the claimant to a significant risk of the eventual damage, should be liability commensurate with the degree of risk for which that defendant was responsible. Ascertainment of the degree of risk would be an issue of fact to be determined by the trial judge. The issue would depend upon the duration of the exposure for which each negligent defendant was responsible compared with the total duration of the claimant's exposure to the injurious agent in question. It might depend also on the intensity of the exposure for which the defendant was responsible compared with the intensity of the exposure for which the defendant was not responsible. The exact type of agent might be a relevant factor in assessing the degree of risk. I have in mind that there are different types of asbestos and some might create a greater risk than others. Other factors relevant to the degree of risk might come into the picture as well. The assessment of the percentage risk for which an individual defendant was responsible, and therefore the percentage of the total damage for which that defendant could be held liable, would, as I have said, be an issue of fact to be decided on the evidence in each case. I would answer question (3) accordingly.
63. If this answer to question (3) is adopted, no problems about apportionment of damages between different defendants would arise. Each defendant would be responsible only for his proportion of the total damages that would have been awarded if the whole period of exposure had occurred during the claimant's employment by a single defendant. Any element of contributory negligence during the period of exposure for which a defendant was responsible would go to reduce the damages payment by that defendant. The approach to damages payable on a Fatal Accidents Act 1976 claim would be no different.