Barker v. Corus (UK) plc, (2006) 351 N.R. 102 (HL)

• Case Date: May 03, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 351 N.R. 102 (HL)

Barker v. Corus plc (2006), 351 N.R. 102 (HL)

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Temp. Cite: [2006] N.R. TBEd. JL.026

Barker (respondent) v. Corus (UK) plc (appellants) (formerly barker (respondent) v. Saint Gobain Pipelines plc (appellants))

Murray (widow and executrix of the estate of John Lawrence Murray (deceased)) (respondent) v. British Shipbuilders (Hydrodynamics) Limited (appellants) and others and others (appellants)

Patterson (son and executor of the estate of J. Patterson (deceased)) (respondent) v. Smiths Dock Limited (appellants) and others (Conjoined appeals)

([2006] UKHL 20)

Indexed As: Barker v. Corus (UK) plc

House of Lords

London, England

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond

May 3, 2006.

Summary:

In Fairchild v. Glenhaven Funeral Services Ltd. (2002) the House of Lords created an exception to standard causation requirements for liability in tort. In that case it was decided that a worker who had contracted mesothelioma after being wrongfully ex­posed to significant quantities of asbestos dust at different times by more than one em­ployer or occupier of premises could sue any of them, notwithstanding that he could not prove which exposure had caused the di­sease. That is, persons were made liable for damage even though they might not have caused it at all, simply because they had materially contributed to the risk of causing that damage. In the Fairchild decision all members of the House emphasised the ex­cep­tional nature of the liability. The follow­ing appeals raised issues left open in Fair­child.

The first appeal related the the death of Barker from asbes­tos-related mesothelioma. During his work­ing career he had three ma­terial exposures to asbestos, the first when working for Graes­sers Ltd., the second when working for Corus (UK) plc, and the third while self-employed. The first two exposures involved breaches of duty of care by the em­ployers, while the last expo­sure was agreed to have involved a failure by Barker to take reason­able care for his own safety. An issue arose as to whether the fact that not all the expo­sures which could have caused the di­sease involved breaches of duty (i.e., that one exposure was non-tortious) took the case outside the exception created by Fairchild to the standard causation principles of tortious liability. In Fairchild all expo­sures involved breaches of duty of care to the claimant. In the Barker case, the trial judge, Moses, J., decided that the case was within the Fair­child exception and that Corus was liable joint­ly and severally with Graes­sers Ltd., but subject to a 20% reduc­tion for Barker's con­tributory negligence while he was self-em­ployed. As Graessers Ltd. was insolvent and without any identified insurer, Corus was un­able to recover any contribu­tion (i.e., in the result Corus was liable for the whole of the dam­age less the 20%). The Court of Appeal agreed with the trial judge on both points (see [2005] 3 All E.R. 661). Corus (U.K.) plc appealed.

The House of Lords held that, for purposes of applying the Fairchild exception, it was irrelevant whether the other exposures were tortious or non-tortious, by natural causes or human agency or by the claimant himself. The court was therefore in agreement with Moses, J., and the Court of Appeal on the first issue raised in the Barker case (i.e., it did not matter that one of the exposures was caused by the deceased himself). As to the joint and several liability issue, the court, Lord Earlsferry dissenting on this point, held that when liability was exceptionally im­posed as under Fairchild, if more than one per­son might have been responsible, liability should be divided in accordance with the de­gree of risk for which each defendant was re­sponsible (i.e., liability should be several only). Therefore, the court allowed the ap­peal in the Barker case, but only to the ex­tent of setting aside the award of damages against Corus (UK) plc, and remitted the case for redetermination of damages by ref­erence to the proportion of the risk attri­but­able to the breach of duty caused by Corus. With respect to the other two appeals before the House, i.e., Smiths Dock Ltd. v. Pat­ter­son and Murray v. BS Hydro­dynamics Ltd., which raised only the joint and several lia­bil­ity issue, in each case the court allowed the appeal and remitted the matter to the County Court to determine the damages by reference to the share of risk attributable to the breaches of duty by the defendants (i.e., on a several basis).

Torts - Topic 57

Negligence - Causation - Successive or consecutive causes - [See first Torts - Topic 61 ].

Torts - Topic 61

Negligence - Causation - Causal connec­tion - Barker died of asbestos-related mesothelioma - During his working career he was exposed to asbestos while working for Graessers Ltd., while working for Corus (UK) plc, and while self-employed -Graessers Ltd. was insolvent - The House of Lords held that this case fell within the exception created by the court in Fairchild v. Glenhaven Funeral Services (2002) to the normal rules of causation notwithstand­ing that one of the exposures to asbestos was non-tortious - That is, the plaintiff could sue either of the employers notwith­standing that he could not prove which ex­posure had caused the disease - The court held further that damages were to be as­sessed on a several basis, each defendant being responsible for the degree of risk caused by that defendant - See paragraphs 1 to 129.

Torts - Topic 61

Negligence - Causation - Causal connec­tion - In Fairchild v. Glenhaven Funeral Services Ltd. (2002) the House of Lords created an exception to standard causal requirements for liability in tort - In that case it was decided that a worker who had contracted mesothelioma after being wrong­fully exposed to significant quan­ti­ties of asbestos dust at different times by more than one employer or occupier of prem­ises could sue any of them, notwith­standing that he could not prove which ex­posure had caused the disease - That is, persons were made liable for damage even though they might not have caused it at all, simply because they had materially con­tributed to the risk of causing that damage - In the Fairchild decision all members of the House emphasised the exceptional na­ture of the liability - The House of Lords, in the case at bar, discussed the application and scope of the Fairchild exception - See para­graphs 1 to 129.

Torts - Topic 7003

Joint and concurrent tortfeasors - Several tortfeasors - In Fairchild v. Glenhaven Funeral Services Ltd. (2002) the House of Lords created an exception to standard causal requirements for liability in tort - In that case it was decided that a worker who had contracted mesothelioma after being wrong­fully exposed to significant quan­ti­ties of asbestos dust at different times by more than one employer or occupier of prem­ises could sue any of them, notwith­standing that he could not prove which ex­posure had caused the disease - An issue arose as to whether in a case wherein lia­bility was founded on the exception in Fair­child, damages should be joint and sev­eral - The House of Lords, Lord Earls­ferry, dissenting on this point, held that damages should be several (i.e., if more than one person might have been respon­sible, liability should be divided in accord­ance with the degree of risk for which each defendant was responsible) - See para­graphs 1 to 129.

Torts - Topic 7148

Joint and concurrent tortfeasors - Concur­rent tortfeasors - Liability of each for whole of damage - [See Torts - Topic 7003 ].

Cases Noticed:

Fairchild Estate v. Glenhaven Funeral Services Ltd. et al., [2003] 1 A.C. 32; 293 N.R. 1; [2002] UKHL 22, consd. [paras. 1, 50, 66, 104].

Gregg v. Scott, [2005] UKHL 2; [2005] 2 A.C. 176; 330 N.R. 1, refd to. [paras. 5, 54, 71, 114].

McGhee v. National Coal Board, [1973] 1 W.L.R. 1 (H.L.), refd to. [paras. 12, 52, 67, 104, 123].

Wilsher v. Essex Area Health Authority, [1988] A.C. 1074; 87 N.R. 140 (H.L.), refd to. [paras. 13, 64, 114].

Dingle v. Associated Newspapers Ltd., [1961] 2 Q.B. 162 (C.A.), refd to. [paras. 28, 110].

Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), refd to. [para. 36].

Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563 (C.A.), refd to. [para. 36].

Brown v. Superior Court (1988), 751 P.2d 470 (Cal. S.C.), refd to. [para. 44].

Sindell v. Abbott Laboratories (1980), 607 P.2d 924, refd to. [para. 44].

Hymowitz v. Eli Lilly & Co. (1989), 539 N.E.2d 1069 (N.Y.C.A.), refd to. [para. 45].

Hotson v. East Berkshire Health Author­ity, [1987] A.C. 750; 80 N.R. 95 (H.L.), refd to. [para. 64].

Arneil v. Patterson, [1931] A.C. 560; [1931] All E.R. Rep. 90 (H.L.), refd to. [paras. 69, 122].

Bonnington Castings Ltd. v. Wardlaw, [1956] A.C. 613; [1956] 1 All E.R. 615 (H.L.), refd to. [paras. 72, 123].

Nicholson v. Atlas Steel Foundry and Engineering Co., [1957] 1 W.L.R. 613, refd to. [para. 76].

Gardiner v. Motherwell Machinery and Scrap Co., [1961] 1 W.L.R. 1424; [1961] S.C.(H.L.) 1, refd to. [para. 76].

Rahman v. Arearose Ltd., [2001] Q.B. 351 (C.A.), refd to. [para. 111].

Hatton v. Sutherland, [2002] E.W.C.A. Civ. 76; [2002] 2 All E.R. 1; [2002] I.C.R. 613 (C.A.), refd to. [para. 111].

Thompson v. Smiths Shiprepairers (North Shields) Ltd., [1984] Q.B. 405, refd to. [para. 123].

Authors and Works Noticed:

Prosser and Keeton, Law of Torts (5th Ed. 1984), pp. 345 [paras. 111, 122]; 346 [para. 111].

Weir, Tony, Making it More Likely v. Making it Happen, [2002] C.L.J. 519, generally [para. 13].

Counsel:

Jeremy Stuart-Smith, Q.C., Charles Feeny and Jayne La Grua (Instructed by Berrymans Lace Mawer for Corus and Eversheds for Smiths Docks and British Shipbuilders), for the appellants;

David Allan, Q.C., and Peter Cowan (In­structed by John Pickering & Partners), for the respondent, Barker;

Allan Gore, Q.C., and Nigel Lewers (In­structed by Robinson & Murphy), for the respondent, Patterson;

David Allan, Q.C., and Peter Cowan (In­structed by Thompsons), for the re­spon­dent, Murray.

Agents:

[not disclosed]

This appeal was heard before Lord Hoff­mann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Rich­mond, of the House of Lords. The decision of the house was given on May 3, 2006, when the follow­ing speeches were delivered:

Lord Hoffmann - see paragraphs 1 to 49;

Lord Scott of Foscote - see paragraphs 50 to 65;

Lord Rodger of Earlsferry, dissenting in part - see para­graphs 66 to 102;

Lord Walker of Gestingthorpe - see para­graphs 103 to 119;

Baroness Hale of Richmond - see para­graphs 120 to 129.