The decision of the House of Lords in an English appeal, Barker v Corus (UK) plc [2006] UKHL 20, published on 3 May 2006, created a stir in Scotland, in part because there was a dissent by Lord Rodger of Earlsferry, one of the Scottish Law Lords.  Barker was a case about liability for death resulting from asbestos-related mesothelioma.  The legal issues were summarised thus by Lord Hoffmann:


1. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22;

[2003] 1 AC 32 the House decided that a worker who had contracted

mesothelioma after being wrongfully exposed to significant quantities of

asbestos dust at different times by more than one employer or occupier

of premises could sue any of them, notwithstanding that he could not

prove which exposure had caused the disease. All members of the House

emphasised the exceptional nature of the liability. The standard rule is

that it is not enough to show that the defendant’s conduct increased the

likelihood of damage being suffered and may have caused it. It must be

proved on a balance of probability that the defendant’s conduct did

cause the damage in the sense that it would not otherwise have

happened. In Fairchild, the state of scientific knowledge about the

mechanism by which asbestos fibres cause mesothelioma did not enable

any claimant who had been exposed to more than one significant source

of asbestos to satisfy this test. A claim against any person responsible

for any such exposure would therefore not satisfy the standard causal

requirements for liability in tort. But the House considered that, in all

the circumstances of the case, that would be an unjust result. It

therefore applied an exceptional and less demanding test for the

necessary causal link between the defendant’s conduct and the damage.


2. These three appeals raise two important questions which were

left undecided in Fairchild. First, what are the limits of the exception?

In Fairchild the causal agent (asbestos dust) was the same in every case,

the claimants had all been exposed in the course of employment, all the

exposures which might have caused the disease involved breaches of

duty by employers or occupiers and although it was likely that only one

breach of duty had been causative, science could not establish which one

it was. Must all these factors be present? Secondly, what is the extent of

liability? Is any defendant who is liable under the exception deemed to

have caused the disease? On orthodox principles, all defendants who

have actually caused the damage are jointly and severally liable. Or is

the damage caused by a defendant in a Fairchild case the creation of a

risk that the claimant will contract the disease? In that case, each

defendant will be liable only for his aliquot contribution to the total risk

of the claimant contracting the disease – a risk which is known to have



By 4-1 the House decided in Barker that (1) it was irrelevant whether or not all the possible causes of the harm involved breach of duty; but (2) that the damage was only the creation of a risk of disease, thereby limiting the liability of defendants significantly and further making it not joint and several.  It was on (2) that Lord Rodger dissented, pointing out as a participant in the Fairchild judgment – and in the view of Scots Law News, convincingly – that this was not the way in which that case had been decided (in other words not really asserting that (2) was contrary to Scots legal principles, albeit the true meaning of the Scottish precedent McGhee v National Coal Board 1973 SC (HL) 37 lies at the heart of what he says).


The decision is of course bad for mesothelioma victims, but good for insurers.  It therefore produced a political reaction in both England and Scotland, leading to consideration in both Whitehall and St Andrew’s House about its possible reversal by legislation (although from a technical point of view it is not easy to see how this can be done, given the complexities of the causation rules and the Fairchild exception, which will presumably be left in place).  In Scotland the issue linked with potential legislative revision of another aspect of the law applying to mesothelioma victims, namely the claim of family members of victims for solatium arising, under the Damages (Scotland) Act 1976, only after the death of the victim.  Thus a dying victim has to take a decision whether to settle his own claim before death, or leave it to the family to claim a probably larger sum after his death.  The Deputy Justice Minister is known to favour reform enabling the solatium claim to be made while the victim is still alive.  The problem is lack of legislative time before the current Parliamentary session ends early in 2007; but the unfortunate mesothelioma victims don’t have much time either.  Watch this space; it looks as though the political antipathy to the so-called ‘compensation culture’ doesn’t extend to industrial disease and injury.