Asbestos Litigation Update
Asbestos Litigation Update
(BARKER –V– CORUS (UK) PLC 2006)
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Background:
In 2003 the House of Lords decided the case of Fairchild -v- Glenhaven Funeral Services Limited in favour of Claimants suffering from malignant mesothelioma. The Court stated that it was prepared to make an exception for mesothelioma suffers who could not point with certainty to the Employer who had exposed them to the fatal dose of asbestos that caused their industrial disease. In view of the seriousness of mesothelioma, the House of Lords in the case of Fairchild allowed victims to recover from one single Employer who had increased their risk of contracting the disease and hence there was no need for them to pursue any other negligent exposing Employers. However, the Court did not decide whether the victims could recover all their damages from a single employer or whether they would have to pursue each negligent employer in order to recover 100% of their damages. Notwithstanding the Courts for the last 3 years had allowed victims to recover all their damages from a single Defendant but that has now changed.
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Mesothelioma Test Cases:
Corus (UK) PLC formerly British Steel together with various other Employers, recently appealed to the House of Lords in the case of Barker -v- Corus (UK) PLC to challenge what they perceived as the unfairness of one negligent employer having to pay all the damages, when there were potentially other negligent employers who should contribute. Indeed in this case he was also a partially self employed Claimant who should contribute. The House of Lords decided in favour of the Defendant employers on the basis that the Claimant had been given the benefit of the doubt of proving medical causation in the case of Fairchild and it would even matters out with Defendants if they were only required to pay their share of the risk of exposure of the Claimant to asbestos while in their employment. Accordingly Claimants will now have to sue successfully each of their employers that negligently exposed them to asbestos if they are going to recover 100% of their damages. The affect of the House of Lords decision will be that:
- Claimants will still be able to prove that their mesothelioma was caused by any one negligent exposing employer without having to actually prove which was the guilty employer who specifically caused their disease.
- Responsibility for the Claimant’s damages will now have to be apportioned between each negligent exposing employer.
- The apportionment between employers is likely to be on the basis of the length of time of the exposure rather than on the basis of intensity and frequency of exposure; thus where a victim was exposed for a total of 20 years and was exposed by two employers for 10 years each, then each of those employers will be responsible for 50% of the damages.
- In order for a Claimant to recover 100% of their damages, they will have to sue all exposing employers successfully but will have to be satisfied with a percentage if they cannot successfully trace all of their employers/insurers.
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Summary:
Despite the House of Lords decision in the case of Barker –v- Corus (UK) PLC mesothelioma cases will remain one of the most serious types of claims that are regularly taken to UK Courts. These cases will continue to attract one of the highest levels of compensation, owing to serious nature of the pain and suffering caused by mesothelioma. New rulings are also going to add considerably to the burden of Claimants and their Solicitors in having to trace each exposing employer, together with a solvent insurer in every case where the Claimant wants to recover the maximum damages for themselves and their families. This emphasises the continuing specialist nature of this type of legal work and need for Clients to consult specialist disease Solicitors at Winterbothams.
Peter D.A. Hankins
Freephone: 0800 0859960
or email .