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Barker v Corus UK [2006] UKHL 20

Assessing causation and damages where there is sizable uncertainty as to the causal link.

Facts

This case was an appeal from the earlier decision in Barker v Saint Gobain Pipelines Plc [2004] EWCA Civ 545, regarding the deceased claimant who had contracted lung cancer (malignant mesothelioma) due to exposure from asbestos. The exposure had happened either during his eight year course of employment with the defendant, during his six week course of employment with another employer, or on one of three occasions when he had been self-employed. Originally the Court of Appeal determined that the fact exposure may have potentially occurred due to his own negligence did not negate the application of the principle developed in Fairchild v Glenhaven Funeral Services [2002] UKHL 22, however did reduce the damages award.

Issues

The impact on a damages award for a claim of tortious negligence where the claimant may themselves have been responsible for the injury.

Held

The House of Lords allowed the appeal, holding (with a split bench) that the Fairchild principle was applicable in the instant case and thus where the claimant could successfully prove that the defendant’s tortious negligence had materially increased the risk of injury, they were entitled to remedy. Further, an assessment of a party’s liability ought only depend upon that party’s own actions with external factors being relevant at the damages assessment stage. Moreover, any damages reductions ought be determined with regards to the likelihood that the defendant in question had caused the harm compared to the other possible reasons (including the claimant himself).

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