House of Lords Asbestos Decision Limits Damage Liability

The U.K.’s House of Lords handed down judgments on Wednesday, May 3, in three major cases involving employers and their insurers liability for damages to workers and their families resulting from asbestos related diseases.

The decision in the case of Barker v Corus, and two related cases, limited the application of a previous case, Fairchild v Glenhaven, decided in 2002, which had held that a worker “who had contracted mesothelioma after being exposed to asbestos dust at different times by more than one employer could successfully sue any of them in respect of his entire damage, notwithstanding that he could not prove which employer had actually caused his disease,” in the words of a summary of the decision provided by the law firm of Lawrence Graham LLP.

The Corus decision found differences with the facts in Fairchild – for one the complaint cited asbestosis, not mesothelioma as the malady in question; for another the plaintiff Barker had also been self-employed for a period of time. The Court determined that none of the employers could be held entirely responsible for the full amount of damages. Each past employer was therefore liable to pay damages only in proportion to the time the employee had been exposed to asbestos fibers at each place he worked.

The Lords in effect rejected the notion of strictly applying the rules of joint and several liability in cases where the facts concerning the duration of employment and the amount of exposure to asbestos could be reasonably determined. They therefore sent the case back to the lower courts to make these determinations of fact.

The case is nonetheless seen as victory of sorts for the insurance industry and the remaining industrial concerns that are still solvent. Plaintiffs’ attorneys roundly criticized the result as a miscarriage of justice.

Nick Starling, the Association of British Insurers Head of General Insurance, commented: “This is a very detailed and complex judgement and the industry, which was not party to the case, will study it carefully. Our over-riding commitment is to ensure that claimants receive the compensation to which they are entitled as quickly as possible.”

In its comment on the case, Lawrence Graham noted a recent trend in British courts towards restricting rather than enlarging the scope of recoveries in asbestos cases. The firm also observed: “The current approach of the English courts suggests that although UK asbestos related liabilities will continue to be considerable for insurers, they are taking a very different course to those generated in the U.S.”