Date: Thu, 25 May 2006 10:27:40 +0100

From: Adam Kramer

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

As to the 'new tort' point, the range of judgments on this point was interesting.

- Lord Hoffmann seemed to say that, within the Fairchild principle, the harm was the creation of a risk of the mesothelioma (requiring of course that the mesothelioma did in fact manifest itself). This harm (the risk) was divisible and therefore liability should be several as in Holtby and Allan (although those cases weren't cited).

- Lord Rodger (the only dissentient on apportionment) said that this was inconsistent with Fairchild and particularly McGhee, and that there was no enclave and the cases were much closer to ordinary concurrent liability cases and so there should be joint and several liability.

- Lords Scott and Walker expressly adopted Lord Hoffmann's reasons (giving them a majority) although in their own reasoning did not go quite as far as he went.

- Baroness Hale was the closest to Lord Rodger of the majority. She rejected Hoffmann's reasoning that the harm was the risk, although said that there should be apportionment as a practical and fair response to the Fairchild exception in which defendants were held liable for creating a risk of harm (the harm being mesothelioma, not the risk itself).

For me the remaining interesting questions are raised by the issue, only touched upon, of whether all the possibilities of causes of the harm must be a single agent/mechanism, or whether it must be at least probable that the harm was caused by that single agent/mechanism, or whether there is no single agent rule at all (providing of course that there still must be a 'state of science' problem with showing how the harm was caused). I'm thinking about that fact that even in the case of mesothelioma, only 90% is caused by asbestos (see the Court of Appeal in Fairchild). Also if the single agent rule were kicked out then the principle might apply to indeterminate plaintiff problems: a particular company or industry exposes a town to a chemical or radiation (through a mobile phone mast, mobile phones, water pollution etc.) and the incidence of a particular disease increases by a statistically significant amount. Can each person from the town who contracts the disease sue the company/all the companies in the industry for their share of the risk of causing the disease, even though many or most of the townspeople with the disease will have caught it through other mechanisms)? (Cf Sindell v Abbott Laboratories in the US, cited by Lord Hoffmann in Barker but not in support of this point.) Clearly these looming mass torts are a policy factor behind everything, and the dicta in Fairchild and Barker leaned heavily towards the single agent theory (so, presumably, unless all non-de minimis possible causes of the harm were through a single agent or mechanism, the case does not fall within Fairchild, although see the 90% mesothelioma issue). The House of Lords is tied by Wilsher (where no liability was found), which prevents complete abandonment of the single agent rule, but Wilsher could also support a rule that it must be more likely than not that a single agent was the cause (and if it is more likely than not, the full compensation could be split among those who are in court who exposed the defendant to that agent on the Barker principle of apportionment). Of course, there is also a further question of what counts as a single agent (I think Lord Rodger mentioned 'substantial similarity' in Fairchild), which allows some room.

Adam Kramer
3 Verulam Buildings,
London, UK

-----Original Message-----
From: Barry Allan
Sent: 24 May 2006 22:39
Subject: Re: ODG: 'Barker v Corus - the emergence of a new tort?'

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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