Date: Thu, 29 Jun 2006 09:30:24 +0100

From: Andrew Burrows

Subject: Asbestos compensation

Although I dislike the reasoning and result in Barker, and agree with the wish to overrule it, the Lord Chancellor's mode of expression seems to me to bear out Rob Stevens's point posted a few weeks ago about the apparent severe difficulties that will be faced in drafting legislation to achieve this result. To say, as the Lord Chancellor does, that there will be legislation so that negligent employers will be made jointly and severally liable does not, on the face of it, meet the point that the reasoning of the majority in Barker did not, as such, impose proportionate liability rather than joint and several liability. Rather the reasoning redefined the damage as (negligently) materially increasing the risk of contracting mesothelioma. Redefining the damage in that way meant that the liability was necessarily proportionate while not departing from the normal rule that negligently caused mesothelioma renders employers jointly and severally liable. So I would have thought that it is really the redefining of the damage that the legislation will need to address not the principle of joint and several liability.

Andrew Burrows

Hector MacQueen wrote:

I didn't see anyone on the list picking up the Lord Chancellor's announcement on 20 June 2006 about the UK Government's intentions with regard to legislation to undo Barker, so here it is, for information - looks like the solution lies in imposing joint and several liability rather than mucking about with causation.

The Government is acting quickly to help claimants suffering from this terrible disease to receive the compensation to which they are entitled as soon as possible. I intend to bring forward an amendment to the Compensation Bill to provide that in these cases negligent employers should be jointly and severally liable, so that the claimant can recover full compensation from any relevant employer. It would then be open to that employer to seek a contribution to the damages awarded from other negligent employers.

The Scottish Executive has signalled that it wants this legislation to extend to Scotland as well.

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