The Impact of Barker v Corus (UK) PLC in Mesothelioma Cases

Colin EttingerPartner, Irwin Mitchell

Typical ScenarioJoe.60. contracts mesothelioma.

Heating and ventilation engineer for most of his working lifeEmployer (a) – 5 yearsEmployer (b) – 1 yearEmployer (c) - 9 years

Employer (c) is still trading and has viable insurance. Value £150,000Barker 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