Barker v Corus UK [2006] UKHL 20
Assessing causation and damages where there is sizable uncertainty as to the causal link.
Facts
This case was an appeal from the earlier decision in Barker v Saint Gobain Pipelines Plc [2004] EWCA Civ 545, regarding the deceased claimant who had contracted lung cancer (malignant mesothelioma) due to exposure from asbestos. The exposure had happened either during his eight year course of employment with the defendant, during his six week course of employment with another employer, or on one of three occasions when he had been self-employed. Originally the Court of Appeal determined that the fact exposure may have potentially occurred due to his own negligence did not negate the application of the principle developed in Fairchild v Glenhaven Funeral Services [2002] UKHL 22, however did reduce the damages award.
Issues
The impact on a damages award for a claim of tortious negligence where the claimant may themselves have been responsible for the injury.
Decision/Outcome
The House of Lords allowed the appeal, holding (with a split bench) that the Fairchild principle was applicable in the instant case and thus where the claimant could successfully prove that the defendant’s tortious negligence had materially increased the risk of injury, they were entitled to remedy. Further, an assessment of a party’s liability ought only depend upon that party’s own actions with external factors being relevant at the damages assessment stage. Moreover, any damages reductions ought be determined with regards to the likelihood that the defendant in question had caused the harm compared to the other possible reasons (including the claimant himself).
Words: 265
Updated 19 March 2026
This case summary is broadly accurate in its description of the House of Lords’ decision in Barker v Corus UK [2006] UKHL 20. However, readers should be aware of a highly significant statutory development that substantially altered the legal position shortly after the decision was handed down.
The House of Lords held that liability among multiple defendants in mesothelioma cases should be apportioned (several, not joint liability), with each defendant liable only for a proportionate share of damages reflecting the relative degree of risk they created. Parliament responded almost immediately by enacting the Compensation Act 2006, specifically section 3, which reversed this aspect of Barker in mesothelioma cases. Section 3 reinstated full joint and several liability for defendants in mesothelioma claims where liability is established under the Fairchild exception, meaning a claimant can recover the full amount of damages from any one defendant, leaving that defendant to seek contribution from others. This statutory reversal applies only to mesothelioma; the apportionment approach from Barker may still be relevant in other disease contexts where the Fairchild exception is invoked. The article does not mention this legislative override, which is a material omission for any reader seeking to understand the current legal position in mesothelioma litigation. The broader Fairchild principle itself remains good law, as confirmed in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10.
