Barker v Corus (UK) plc

Barker v Corus (UK) plc [2006] UKHL 20 is a landmark decision of the House of Lords concerning causation in cases of mesothelioma, an asbestos-related cancer. The case addressed the question of whether a claimant could recover damages from a defendant who had negligently exposed them to asbestos, even if the exposure was only one of several potential causes of the disease, and the claimant could not prove that the defendant's exposure was the specific cause.

Prior to this case, the "but for" test of causation traditionally applied in negligence cases, meaning the defendant's negligence had to be a necessary condition for the harm to occur. However, in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, the House of Lords had established an exception for mesothelioma cases. They ruled that if a claimant could prove they were exposed to asbestos negligently by multiple defendants, and that each exposure materially increased the risk of contracting mesothelioma, they could recover damages from each defendant, even if they could not prove which exposure actually caused the disease. Liability was joint and several.

Barker v Corus modified the Fairchild exception. The House of Lords held that in cases where a claimant had been exposed to asbestos both negligently by a defendant and through self-exposure, the liability of each defendant should be several, not joint and several. This meant that each defendant would only be liable for damages proportionate to their contribution to the overall risk of the claimant developing mesothelioma. The key difference from Fairchild was the presence of the claimant's own contributory negligence, or exposure to asbestos from a source for which no defendant was responsible.

The decision in Barker v Corus was controversial, as it placed a greater burden on claimants to track down all possible sources of asbestos exposure and reduced the potential for full compensation. The perceived unfairness of the several liability ruling led to the enactment of Section 3 of the Compensation Act 2006, which effectively reversed the Barker ruling for mesothelioma cases and restored joint and several liability in such instances, specifically when a defendant is being pursued under the Fairchild principle. Therefore, after the Act, any defendant who negligently exposed the claimant to asbestos and materially increased the risk of mesothelioma is fully liable, regardless of other potential exposures, and can then pursue contribution from other responsible parties. The Barker principle, though, remains relevant for other torts where the Compensation Act 2006 does not apply.