Date: Thu, 25 May 2006 09:26:37 +1000

From: Neil Foster

Subject: ‘Barker v Corus - the emergence of a new tort?’

I wonder whether anyone else on the list bears the marks of a childhood wasted in reading the occasional DC comic and was struck how quickly Barry Allan responded to Jason's question - "in a Flash"!? (Sorry Barry, I guess you get it all the time.)

Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Barry Allan 25/05/06 7:39 >>>

Jason Neyers wrote:

By the way, does anyone know what Barker v Corus is about?

The Barker v Corus case is a House of Lords decision of a couple of weeks ago, picking up from Fairchild and its response to the problem of inability to identify which of a number of potential defendants had caused the plaintiff's health problems. The context was asbestos induced mesothelioma where he had worked for a number of employers. So, the suggestion of a new tort is because of the Fairchild exception to identifying causation threatening to be a tort in its own right - along the lines of a material increase in the risk that the claimant will suffer damage, rather than actually causing the disease.

In Barker, the difficulty was that the plaintiff had for a while been self employed and not taken reasonable care to protect against mesothelioma - so there was a possibility of it being his own fault. So the HL was forced to take the Fairchild "analysis" further (it acknowledges that the opinions in Fairchild don't really stand up to close textual analysis) and work out where its limits are. It also had to look to whether there could be any sort of apportionment as between several tortfeasors, all of whom were in the gun for increasing the risks to the plaintiff, but no one of which could be identified as responsible. On this, the answer is [43] "attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates", per Lord Hoffman.

Lord Rodger is probably responsible for the suggestion a new tort is being created: he dissents, on the basis [85] "new analysis which the House is adopting will tend to maximise the inconsistencies in the law by turning the Fairchild exception into an enclave where a number of rules apply which have been rejected for use elsewhere in the law of personal injuries".

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