The Impact of Barker v Corus (UK)
PLC in Mesothelioma Cases
Colin Ettinger
Partner, Irwin Mitchell
Typical Scenario
Joe.60. contracts mesothelioma.
Heating and ventilation engineer for most of his working life
Employer (a) – 5 years
Employer (b) – 1 year
Employer (c) - 9 years
Employer (c) is still trading and has viable insurance.
Value £150,000
Barker value £84,375 (56.25%)
Non-negligent Exposure
If (a) and/or (b) were non-negligent does this
get (c) off the hook?
Answer : No
“…… it should be irrelevant whether the other
exposure was tortious or non-tortious, by
natural causes or human agency or by the
Claimant himself”
Lord Hoffman in Barker
Tracing (a) and (b)
• Company Registry search
• Identify insurer
–
–
–
–
–
ABI
Own knowledge
Shared knowledge
Expert
Initiative
• Restore company
Apportionment
“The damages which would have been awarded
against a Defendant who had actually caused
the disease must be apportioned to the
Defendants according to their contribution to
the risks”
Lord Hoffman in Barker
How Is The Contribution To Risk To
Be Determined?
“The issue will depend upon the duration of the exposure for which each
negligent Defendant was responsible compared with the total duration
of the Claimant’s exposure to the injurious agent in question. It might
depend also on the intensity of the exposure for which the Defendant
was responsible compared with the intensity of exposure for which the
Defendant was not responsible. The exact type of agent might be a
relevant factor in assessing the degree of risk. I have in mind there
are different types of asbestos and some might create a greater risk
than others. Other factors relevant to the degree of risk might come
into the picture as well”.
Lord Scott in Barker
• Duration of exposure
• Intensity of exposure
Types of Asbestos
• Croclidolite – 500
• Amosite – 100
• Crysotile - 1
Evidence
• Lay evidence
• Expert evidence
Insurance Cover
• Single exposure
see Phillips v Syndicate 992 2004 Lloyds
Ins.report REP.426
• Multiple exposure
? Insurers’ liability limited to period on risk
Pre- Barker Position
•
•
•
•
Statement from Joe likely to be sufficient
Same investigation on quantum
Settlement likely without proceedings
If proceedings necessary “show cause”
procedure
• Trial listed within a few weeks
• Claim likely to be resolved within 12 months
Costs Factors
•
•
•
•
Significantly higher base costs
Significantly higher disbursements
3 Defendants’ lawyers’ costs
Court fees
? How much saving ?
? WHAT ABOUT JOE ?
SOLUTION
• Legislation
• ? Expert evidence may establish how each
significant exposure made a contribution