Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 545
Applicability of the Fairchild principle where the deceased was potentially responsible for some asbestos exposure, and whether damages should be apportioned.
Facts
Mr Barker died from malignant mesothelioma following exposure to asbestos. Barker’s varied employment history included exposure during six weeks with Graessers in 1958, during his employment with John Summers and Sons between 1960 and 1968, and on three occasions during a later period of self-employment as a plasterer. Saint Gobain Pipelines accepted responsibility for John Summers’s liabilities. His widow recovered damages using the principle developed in Fairchild v Glenhaven Funeral Services [2002] UKHL 22. The employer appealed against liability and, alternatively, the refusal to apportion damages by reference to its share of the exposure.
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Issues
First, whether Barker’s asbestos exposure during self-employment prevented his widow from relying on the Fairchild principle, because his disease might have resulted from his own activities rather than anyone’s breach of duty. Secondly, whether the defendant’s liability should be limited in proportion to its share of the total exposure. This was distinct from reducing damages for Barker’s own contributory negligence.
Decision/Outcome
The Court of Appeal held that the principle developed in Fairchild was in fact applicable, and that the fact that the illness may have resulted from Mr Barker’s own actions did not serve to defeat his widow’s claim for damages where the employer’s actions materially increased the risk of developing such an illness. The court treated mesothelioma as an indivisible injury and rejected the argument that the defendant’s liability should be apportioned according to its share of exposure. Contribution from another responsible employer was a separate matter. The trial judge had already reduced damages by 20% under the Law Reform (Contributory Negligence) Act 1945 for Barker’s failure to take precautions during self-employment. That reduction was not challenged on this appeal. The Court of Appeal unanimously dismissed the employer’s appeal, leaving the award of £152,000 in place.
Later appeal in 2006
In Barker v Corus (UK) plc [2006] UKHL 20, the House of Lords maintained the application of the Fairchild principle despite self-employment exposure, but reversed the Court of Appeal on apportionment and ordered damages to be reassessed by reference to the defendant’s share of the risk.
Also reported: [2005] 3 All ER 661.
Sources: Court of Appeal judgment, 5 May 2004; House of Lords judgment on the later appeal, 3 May 2006.
