Damages: single employer not to be held 100% liable when others may also be responsible

Claimant personal injury solicitors are calling for a change to the government's Compensation Bill after the House of Lords ruled last week that no one employer could be held 100% liable for asbestos damage when several may have been involved.


Staff had previously been able to claim total damages from a single employer under the 2002 judgment in Fairchild v Glenhaven Funeral Services [2002] UK HL 22, but ruling in Barker v Corus [2006] UK HL 20 last week, the Law Lords said this could no longer be the case; they said that where several employers had negligently exposed an employee to asbestos, each of the employers should have to contribute to the damages according to how long the exposure lasted.


Insurance lawyers welcomed the decision as being fairer on employers, but claimant solicitors and unions said their clients have been 'deserted by the law' and predicted that victims and their families would now only see a fraction of what they were entitled to under the previous decision.


They are now calling for a new clause in the Bill, which would say that where a person suffers mesothelioma, anyone who materially increased the risk of that injury occurring would be deemed to have materially contributed to the injury in the absence of proof to the contrary. The draft clause also says that where two or more persons or employers are in breach of duty, they would be jointly and severally liable.


Ian McFall, head of asbestos litigation for national trade union firm Thompsons, who acted for one of the claimants, helped draft the amendment. He said: 'The court has, on a legal technicality which will make no sense to anyone but the driest of lawyers, deprived our client of full compensation for the death of her husband. The real winner here is the insurance industry. We will be urging trade unions and asbestos victim support groups to press for legislation to counteract this massive injustice.'


But Nick Starling, head of insurance at the Association of British Insurers, argued that the decision had made the situation fairer because it did not put the full burden on one employer when many may have been liable.


A spokesman for the Department for Constitutional Affairs, which is responsible for the Bill, said: 'We fully understand that the judgment is disappointing for the claimants involved. We are studying the reasons for the decision very carefully.'