Barker v Corus UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kay,Lord Justice Keene,Lord Justice Wall |
| Judgment Date | 05 May 2004 |
| Neutral Citation | [2004] EWCA Civ 545 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 May 2004 |
| Docket Number | Case No: B3/2003/1370 |
[2004] EWCA Civ 545
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
MR JUSTICE MOSES
OL9 90091
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Right Honourable Lord Justice Kay
The Right Honourable Lord Justice Keene and
The Right Honourable Lord Justice Wall
Case No: B3/2003/1370
Mr Charles Feeny (instructed by Berrymans Lace Mawer) for the Appellant
Mr David Allan QC (instructed by John Pickering and Partners) for the Respondant
In Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, the House of Lords decided that where an employee had been exposed by different employers during different periods of employment to inhalation of asbestos dust in breach of each employer's duty to protect him from the risk of contracting mesothelioma and where he did contract the disease, the fact that the medical evidence could not attribute the onset of the disease to any particular or cumulative exposure did not prevent him from successfully bringing a claim against any one or more of the employers provided that the exposure for which that employer was responsible is not insignificant. This appeal raises two matters arising from that decision. The first is an issue expressly left open by the House of Lords because the point had not been argued on the appeal, namely whether an employer is entitled to an apportionment of his liability to reflect the extent of the overall exposure for which he is responsible. The second raises issues as to the application of the decision in a case where apart from periods of employment with others during which exposure to asbestos dust has occurred, there have also been periods of self-employment during which there has been such exposure.
The appeal is an appeal against a decision of Moses J. sitting at Manchester on 23 May 2003 by which he awarded damages to the widow of a man who had died from mesothelioma contracted as a result of exposure to asbestos dust. The damages awarded were £152,000 representing four fifths of the sum agreed as the measure of damages if the claim succeeded in full. The reduction of one fifth was based on a finding of contributory negligence. The defendant was responsible for the liabilities of a former employer of the deceased, who it was accepted had negligently exposed him to asbestos dust. The appeal is brought by the Defendant contending that there should have been no finding of any liability on its part or alternatively that the award should have been lower reflecting an apportionment argument that had been rejected by the judge.
The Facts
The facts, as agreed or found by the judge, can be related quite shortly since there is no appeal against the judge's findings of fact. The deceased, Mr Barker, very sadly died from mesothelioma at the age of 57 on 14 June 1996. It was accepted that his condition and his death resulted from exposure to asbestos dust.
Between March 1960 and December 1968, he had worked at the Shotton steelworks in Deeside for John Summers and Sons Limited. The defendant accepts that it is responsible for discharging the liabilities of that company. During this employment, he was exposed to asbestos dust and it was accepted that such exposure constituted a breach of the duty owed to the deceased as an employee and that the breach contributed to the risk that the deceased might contract mesothelioma.
It was further agreed that there were other periods during the deceased's working life when he was exposed to asbestos dust. These other relevant periods of employment were a six week period in 1958 when he worked for a firm called Graessers Limited ("Graessers") and a period from December 1968 to April 1989 when he was a self-employed plasterer.
During the first of the three relevant periods of exposure, when he was working for Graessers, throughout the six week period he daily mixed asbestos for pipe laggers and occasionally himself lagged pipes. The exposure was assessed as "heavy, regular, frequent and of medium duration", which was defined by the expert evidence as more than 20 fibres per millilitre, on a daily basis for more than an hour a day but less than half a day.
During the second of the periods, that in respect of which the defendant was liable, the deceased worked as a labourer in a variety of locations in the plant. The greatest exposure occurred during a six months' period when he was working as a part of a pool responsible for cleaning up the galvanising section of the works. In that area, there were four furnaces, the insulation for which consisted in part of asbestos in the form of boards, wool and blankets. There were regular leaks which required repair. To discover the location of leaks in the furnaces, the insulation had to be stripped away to provide access to the joints. Clouds of asbestos would escape and large pieces of asbestos broke off. Dust would gather on the floor. The labourers from the pool, of which the deceased was a part, would be required to sweep it up. This exposure was described by the expert evidence as "heavy, regular, frequent and of long duration".
The third relevant period was the much longer period of over 20 years during which he was self-employed as a plasterer. The judge found that on three distinct occasions during this long period the deceased had had contact with asbestos dust. In 1974, he was involved in cutting asbestos sheets to be fixed to ceilings and to stud partitions. In approximately 1975, he cut asbestos sheets to be fixed to ceilings. In about the same year, he made good loose plaster and pipes lagged with asbestos. The judge accepted that on these occasions there would have been heavy exposure but that on each occasion it was for no more than a short period.
In Fairchild the then medical understanding of the etiology of mesothelioma was recorded by Lord Bingham at paragraph 7 (page 43D to E):
"It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure."
The medical position was unchanged by the date of the hearing of this case by Moses J.
The issues at trial
Moses J. identified three distinct legal issues that had to be resolved by him. He conveniently set these out in his judgment:
'10. …. Firstly, can the claimant bring the cause of the deceased's death within the principle of the causal requirements for establishing liability for mesothelioma caused by exposure to asbestos dust, as explained in Fairchild -v- Glenhaven Funeral Services Limited… notwithstanding his exposure to asbestos dust whilst working as a self-employed plasterer?
11. The defendants contend the fact of such exposure during a period when he was self-employed has the consequence that the claimant cannot bring the cause of the deceased's mesothelioma within the principle in Fairchild, and for that reason the claim should fail. I shall describe this issue as the causation issue.
12. Secondly, whether, if liability is established, the court should apportion the liability of the defendants to reflect the fact that the deceased was also exposed to asbestos dust which might equally have caused mesothelioma during the period of his employment at Graessers Limited and whilst self-employed. I shall call that issue the apportionment issue.
13. Thirdly, whether damages fall to be reduced on account of contributory negligence, in that the deceased failed to take any precautions when handling asbestos as a self-employed plasterer.
13a. It is important to record that this third issue is not the same as the first. On the first issue the defendants contend that liability cannot be established, whether the deceased was guilty of contributory negligence or not."
No issue arises on this appeal on the question of contributory negligence provided liability on the part of the defendant is established. There is an extent to which the availability of a finding of contributory negligence has a bearing on the causation issue but save in this context it will be unnecessary to make further reference to it.
The Causation Issue at trial
Mr Feeny, on behalf of the defendant, argued that the adapting of the orthodox test of causation by the House of Lords in Fairchild was essentially based upon the premise that the claimants were innocent victims of the negligent acts of their various employers so that there would be a real injustice if they could not recover compensation simply because medically it was impossible to identify which employer or employers were responsible for the fibre or fibres that had led to the mesothelioma. He argued that the same characterisation as an "innocent victim" could not be said to be present in a case where one element of the overall exposure resulted from the claimant's exposure during a period of self-employment. If the exposure during self-employment resulted from his own fault, he was not "innocent" and in any event he was not necessarily the "victim" of another's wrongdoing since it was just as likely that he suffered the harm through no fault of any employer.
In order to make good his contention that the claimant's status as an "innocent victim" was an essential prerequisite of the modified test of causation, Mr Feeny drew attention to a number of...
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