Facts
Mr Barker died of mesothelioma after being exposed to asbestos in two employments and during self-employment. The evidence could not establish which exposure caused the disease. Corus, the successor to one employer, argued that the possibility that the disease resulted from non-tortious exposure took the claim outside Fairchild v Glenhaven Funeral Services. The House of Lords heard two other mesothelioma appeals alongside Barker’s case.
Issue
Could a claimant rely on the Fairchild exception when one possible source of exposure was non-tortious? If so, was each defendant liable for the whole loss or only a share?
Decision
The House held that Fairchild applied. The non-tortious exposure did not defeat a claim against an employer whose breach materially increased the risk of mesothelioma.
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The majority held that Corus was liable for its proportion of the risk, assessed by reference to the exposure for which it was responsible. The House allowed the Barker appeal on apportionment only, set aside the damages award and remitted the case to the High Court to redetermine damages. It also allowed and remitted the other two appeals on apportionment.
Reported citations: [2006] 2 AC 572, [2006] 2 WLR 1027, [2006] 3 All ER 785, [2006] ICR 809, [2006] ICR 1413, [2006] PIQR P26, (2006) 89 BMLR 1
Source: Full judgment
