Date: Fri, 18 Aug 2006 10:29:58 +1000

From: Neil Foster

Subject: Effect of statutory over-ruling of Barker v Corus?

Dear Colleagues;

A question for those interested in the Barker v Corus litigation and sequel. I think I understand this, but would like some confirmation. As I read it Barker (in relation to the "proportionate liability" issue) has been statutorily "overturned" by s 3 of the Compensation Act 2006 (UK), which commenced on 25 July 2006. (I don't know for sure what the default commencement rule is in the UK, but I'm assuming it is Royal Assent unless otherwise specified, and s 3 is one of those provisions not said in s 16(1) to commence on order of the Secretary of State).

The change to the proportionate liability rules is "deemed" to have always been the law under s 16(3), except in relation to claims settled or determined by a court before 3 May 2006. Since Barker v Corus was handed down on that day, presumably the intention is that this change to the law will apply to the case of the claimants in that case itself, to allow them to recover the full amount of their claim from any of the available employers. Is that right?

Regards
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

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