It is a sign of aging
when legal developments that you remember are now a part of legal history.
Equally lessons from history are helpful, especially in the light of
ill-informed statements from politicians.
Which brings us to the famous cases of Fairchild and Barker in the
2000s. I can still remember the day I read the judgment in Fairchild v
Glenhaven Funeral Services [2002] UKHL 22. It was a case that was all about
causation in mesothelioma cases. Establishing causation in these cases was
always problematic. This was because there were usually several different
employers who had negligently exposed their workers to asbestos. It was not
possible to establish which particular employer was responsible for the exposure that caused the illness to develop. This was because, in theory, a
single fibre could have triggered the process resulting in the illness. That
fibre could have been inhaled at any time during the victim’s working life.
Any law student knows that, to establish that a person is liable
for an injury you have to show –
1. That they owed a duty
of care
2. That the defendant
breached that duty
3. That the breach caused
or materially contributed to the injury – causation. In other words ‘but for’
the breach, would the injury/illness have occurred?
How could you prove
that an employer was responsible for the illness when it could have been any of
them?
The House of Lords
dealt with this by developing an exception to the ‘but for’ test. If they all
negligently exposed the victim to the risk, then they were all liable for the
injury. In the words of Lord Nicholls –
“Any
other outcome would be deeply offensive to instinctive notions of what justice
requires and fairness demands.” (36)
He
went on –
“The
present appeals are another example of such circumstances, where good policy
reasons exist for departing from the usual threshold 'but for' test of causal
connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is
one of the very risks from which an employer's duty of care is intended to
protect employees. Tragically, each claimant acquired this fatal disease from
wrongful exposure to asbestos dust in the course of his employment. A former
employee's inability to identify which particular period of wrongful exposure
brought about the onset of his disease ought not, in all justice, to preclude
recovery of compensation.” (41)
This was limited to
mesothelioma cases and was very positive news for victims and their families.
Then came the decision in Barker v Corus [2006] UKHL
20 – effectively a sequel to Fairchild. The argument here was about
apportionment. If an employer was liable even though they might not have been
responsible for the particular exposure, then surely any damages must be
limited to the particular exposure for which they were responsible. The
contrary argument was that if they were liable for any, they were liable for
all.
The
House of Lords accepted the argument that it was appropriate to apportion the
damages.
Lady
Hale explained –
“For
as long as we have rules of causation, some negligent (or otherwise
duty-breaking) defendants will escape liability. The law of tort is not
(generally) there to punish people for their behaviour. It is there to make
them pay for the damage they have done. These Fairchild defendants may
not have caused any harm at all. They are being made liable because it is
thought fair that they should make at least some contribution to redressing the
harm that may have flowed from their wrongdoing. It seems to me most fair that
the contribution they should make is in proportion to the contribution they
have made to the risk of that harm occurring.”
This
outcome was a major setback for victims. In many cases, it was only possible to
identify very limited periods of employment. There was a strong reaction which
led the, then, Prime Minister Tony Blair to tell the TUC –
"I
regret that judgment. I’m looking at the moment to see the best opportunity for
us to change it. If we can change it, we will".
The judgment was indeed changed by s1 Compensation Act 2006 which took us back to where we were after Fairchild. An employer who negligently exposed a worker to asbestos was liable in respect of the whole of the damage. There was a joint and several liability.
So
why revisit all of this now? Because it is a classic example of the sovereignty
of Parliament. The highest Court on the land passed a judgment.
Parliament overturned that judgment.
Our
new Attorney General, Suella Braverman, recently wrote a blog where the called
for restrictions of the power of the courts –
“repatriated
powers from the EU will mean precious little if our courts continue to act as
political decision-maker, pronouncing on what the law ought to be
and supplanting Parliament.”
The Barker case
demonstrates just how misconceived she is. The courts can never ‘supplant’
parliament. The courts interpret the law. In the case of Fairchild, the courts
effectively created a new doctrine in order to achieve fairness. But it was
Parliament that stepped in to correct matters after Barker. This is how it is
and how it should be. There is no need for any populist measures to restrict
the courts.
Parliament was and
remains supreme.
Lesson over.
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