International Energy Group Limited v. Zurich Insurance [2015] UKSC 33. Decision of the Supreme Court given on 20 May 2015.

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1 International Energy Group Limited v. Zurich Insurance [2015] UKSC 33 Decision of the Supreme Court given on 20 May 2015 Introduction IEGL concerns the scope of policy coverage of annual contracts of Employer s Liability (EL) insurance in the mesothelioma context. It deals with the typical situation of the employee, who has been exposed to asbestos fibres over a lengthy period whilst in the workplace and who has tragically contracted mesothelioma, the employer, who is culpably responsible for that exposure, and the EL insurer who has written EL policies for the employer for some, but not all, of the period of exposure. Atypically, the twist in IEGL was that the employee who had contracted mesothelioma, Mr Carré, and his employer, IEGL, who had culpably exposed him to asbestos fibres over a 27-year period, were Guernsey based and so the common law of Guernsey applied to the personal injury claim that Mr Carré had brought against IEGL and IEGL had settled for 250,000 damages and interest together with his legal costs (together the Compensation ), incurring 13,000 or so Defence Costs. Part 1: the position as between Mr Carré and IEGL necessary background It was common ground on appeal that the common law of Guernsey should be taken to be identical to the common law of England for relevant purposes. That meant that Mr Carré s personal injury claim was subject to the well-known Fairchild jurisprudence: starting with that famous case 1 and extending to Barker 2 and Sienkiewicz 3. As such, it was (for the most part 4 ) not in dispute in IEGL that Mr Carré did not need to show on the usual but for causation basis that IEGL s culpable exposure had caused his mesothelioma. He did not need to do so because (a) the pathogenesis of that cancer of the lining of the lung is, on present medical evidence, unknowable and (b) given that scientific and factual rock of uncertainty the House of Lords in Fairchild accepted a weak test of causation whereby proof of the fact of mesothelioma coupled with proof of the victim s material exposure to asbestos (increasing the chances of the disease) is sufficient to establish cause in law 5. 1 Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 AC 32 (HL) 2 Barker v. Corus UK Ltd [2006] 2 AC 572 (HL) 3 Sienkiewicz v. Greif (UK) Ltd [2011] 2 AC 229 (SC) 4 Leaving aside the question whether the case involved two sources of asbestos fibres (the other being ambient exposure) and the pure legal question whether the Fairchild doctrine applies to even single source cases. 5 This is not a process of legal or factual deeming but rather a relaxation of the usual but for test and its replacement with the weak causation test. 1

2 Accordingly, on the assumed facts (namely that IEGL s exposure was not only culpable but also of even intensity and frequency over the 27-year period) Mr Carré could have chosen any year (or perhaps even month) of exposure and established liability on IEGL such as to sound in damages for his mesothelioma and its financial sequelae. The question arises, were Mr Carré to establish such liability, for a year s exposure (out of the total of 27) what would the measure of damages against IEGL be? In England, Wales, Scotland and Northern Ireland (but not in Guernsey) the answer is clear or at least became clear in the following way: 1. In Barker the House of Lords decided that the quid pro quo for the radical relaxation of the but for test was several, proportionate liability on the part of each culpable defendant, who became responsible for a percentage of the victim s aggregate exposure to asbestos fibres (from all sources) calculated by taking the relevant defendant s period of culpable exposure as a fraction of the global exposure. 2. Very shortly after the decision in Barker, Parliament expressed its will that the consequences of Barker, placing the sizeable risk of insolvent, uninsured and/or untraceable employees at the door of the victim rather than at the door of the cohort of culpable defendants, were unacceptable. So, by section 3 of the Compensation Act 2006 joint and several liability was restored for each defendant and in respect of each and every period of culpable exposure. In those jurisdictions Parliament thus replaced the Barker quantum rule with a statutory rule, but for mesothelioma only, that any liability was for full liability. In England, where the Act was in force, Mr Carré was thus entitled to his Compensation for each and every year of culpable exposure by IEGL; save of course he could not recover that Compensation more than once. Part 2: Zurich s first ground of appeal did Barker apply as a matter of the common law of Guernsey (namely, England too)? The Guernsey twist in IEGL gave rise to the following question: given that Parliament had reversed the effect of the Barker quantum rule in mesothelioma cases, did that rule cease to be part of the common law of England? If the answer to that question was yes, then the fact that Mr Carré s personal injury claim was governed by Guernsey law made no difference to the situation as it would have been if he had brought a claim in England against an English company: full Compensation would be payable for each period of culpable exposure. But, if the answer was no, then Mr Carré would be entitled only to 1/27 th of his Compensation for each year of culpable exposure forming the basis of his claim against IEGL. Cooke J had answered this question in the negative. The Court of Appeal disagreed and gave an affirmative answer. Zurich appealed to the Supreme Court. It is convenient to consider first IEGL s contentions as to why it said Barker had been consigned to history. They were: 2

3 1. Barker could no longer be said to be part of the common law of Guernsey because, on the footing that it mimicked the English common law, the Act had in effect ousted the Barker rule from the common law of England. 2. Barker had been overruled by the Supreme Court in Trigger 6. IEGL s argument on this point was that (a) the basis of the Barker quantum rule was that, in Barker, the House of Lords had taken Fairchild one step further and rationalised the causation relaxation by creating a cause of action in tort for the creation of risk 7 (b) the quantum rule was thus entirely orthodox, being damages of 1 (say) for every 1% of risk for which the defendant was responsible, rather than a radical new principle leading to subdivision of an otherwise in solidum liability for personal injury and (c) in Trigger the Supreme Court (led by Lord Mance) spoke not of a liability for a risk but instead of a weak causation test; and the Court thereby was rejecting the analysis in Barker and with it the quantum rule. Zurich disagreed. In summary, its answer to these two points was: 1. The Barker quantum rule was capable of having wider application than pure mesothelioma cases 8. The Act had reversed the rule for mesothelioma, but it had not purported to expunge it from the common law for all purposes. 2. The liability for a risk interpretation of Barker was not apt, but even if it was, Trigger had not needed to and had not overruled Barker. The policy rationale for the Barker quantum rule that the pro-claimant revolution (of whatever type) deserved a pro-defendant counter-revolution applied whichever reading one gave to Barker and Trigger did not involve arguments to the contrary. Part 3: the outcome of the first ground of appeal Barker lives! The Court unanimously allowed Zurich s first ground of appeal. All 7 Judges considered that Barker was alive and well for the reasons given by Zurich. Lord Mance s reasoning on this point can be found at paragraphs 25 to 31. Lord Sumption s reasoning is at paragraphs 178 and 179. Part 4: what s all the fuss about whether Barker lives? Why was a question of personal injury law concerning an action brought it Guernsey the subject of this appeal to the Supreme Court on EL insurance issues pertaining to a contract governed by English insurance law? Before giving the answer, it is necessary to add one further fact into the mix. IEGL could not demonstrate that it had 27 years of EL insurance cover; one annual policy for each year of culpable exposure. On the agreed facts, it had 2 years of cover with Excess and 6 with Zurich 9. 6 Durham v BAI (Run off) Ltd [2012] 1 WLR 867 (SC) the fourth mesothelioma case to hit the highest court in the land, but the first to explore the insurance ramifications of the Fairchild relaxation of the but for causation test. 7 So the causation revolution was overthrown and the revolution was instead the recognition of damages for risk in personal injury cases (rejected, of course, in Greg v. Scott [2005] 2 AC 176). 8 As demonstrated by Jay J s recent decision in the asbestos-related lung cancer case of Heneghan v. Manchester Dry Docks [2014] EWGC 4190 (QB) (which is subject to appeal to the Court of Appeal). 3

4 So, there was a gap of 19 years during which IEGL had culpably exposed Mr Carré but in respect of activities in that 19-year period it had no EL cover. The critical importance of the nature of IEGL s substantive liability to Mr Carré to the scope of Zurich s policy response (or so it was thought) arose in this way. Consider the EL insurers indemnity to be a mirror. The employer, who is the insured, holds up its liability to the employee and the EL insurance indemnity reflects back that self-same liability. If the liability is 100, the indemnity is for 100. At all stages of IEGL: 1. Zurich accepted this mirror principle, namely that its contractual obligation to indemnify under any annual EL policy extended to the employer s liability to its employee generated by the employer s activities during the policy year. 2. So, Zurich accepted that, if Barker did not remain alive as a matter of the common law of Guernsey, Mr Carré could choose any year of culpable exposure matching any year for which IEGL had EL insurance and (a) he could claim from IEGL full Compensation and (b) IEGL could in turn seek an indemnity from Zurich in respect of that full Compensation. 3. Zurich also accepted, necessarily, that the above situation would in any event be the case where the Compensation Act 2006 applied. The first ground of appeal therefore had a critical impact on the overall extent of Zurich s indemnity. If, as the Supreme Court held, Barker lived, IEGL could hold up to the mirror only 6/27 ths of the full Compensation it had to pay Mr Carré, because this was the measure of liability generated by six years of culpable exposure out of a total of 27 by application of the Barker quantum rule. That was the result of the appeal and that is the ratio of the case (save, that is, for the point now made and the Defence Costs point addressed later). Part 4: all sums please! Zurich s second ground of appeal In the Court of Appeal, Aikens LJ made reference to the use of the words all sums in Zurich s primary insuring clause. He concluded that, even if the Barker quantum rule applied to Mr Carré s personal injury claim against IEGL, it was irrelevant to the scope of Zurich s indemnity because: 1. It was common ground that mesothelioma had been caused during any chosen year of the culpable exposure as a matter of tort law. 2. Trigger was authority for the proposition that causation was likewise established for the purposes of any year s EL policy. 9 For the sake of fairness, it is stressed that it was never agreed (or asserted) that IEGL had taken a deliberately choice not to insure; but that one way or another these 8 annual policies were all it could demonstrably say existed. 4

5 3. Once that was so, Zurich was responsible for all sums for which IEGL was liable to Mr Carré on account of its having caused his mesothelioma during each applicable EL policy year. 4. All sums meant just that and could not be rated down even if the liability which IEGL held up to the indemnity mirror was only a slice of full liability (on account of the Barker quantum rule). Aikens LJ s approach can be seen to be an exception to the mirror principle. Zurich (and one of the interveners, the Association of British Insurers) was troubled by the ramifications of this all sums point: both for other potential Fairchild-type diseases (such as lung cancer) and for divisible diseases such as deafness and asbestosis. Zurich challenged the all sums point by way of its second ground of appeal. Again, by a 7-0 unanimous verdict, the Supreme Court upheld the challenge to the all sums point. As we shall see, Lords Mance and Sumption took divergent paths when it came to Zurich s third and final ground of appeal the biggie! but a common thread nonetheless ran through their reasoning: an insurer wishes to take on known risk, namely the risk that its insured will present for indemnity liability to third parties arising from employment activities being undertaken during the policy year. It would subvert that fundamental principle for the all sums interpretation of the policy to bring about a far wider liability, for the most part arising from activities undertaken outside the insurance year. Lord Sumption addresses this point at paragraph 162. Part 5: and finally, Zurich s third ground of appeal the Fairchild recoupment right Assume at this stage that Zurich s indemnity, in any one year of EL insurance, is to the full extent of the Compensation. This would be so in an English case to which the Act of 2006 applied. It would also have been so (but in the event was not) had Zurich lost either of its first two grounds of appeal. In the event, given the outcome of the appeal on the first two grounds and because this was not a case to which the Act of 2006 applied, what then fell from their Lordships is obiter and they recognised this to be so. Nonetheless, the matter having been fully argued by Zurich, IEGL, the ABI and a second intervener, the Asbestos Victim Support Group Forum UK the Supreme Court expressed its detailed reasoning on the following revolutionary argument by Zurich: 1. Fairchild and the cases that followed, together with the Act of 2006, had created an enclave in which orthodox legal principles had been eschewed in favour of policy-driven decisions, which had at their core the legitimate aim of compensating mesothelioma victims where otherwise the law would offer them no redress. 2. Within the enclave a remarkable situation arose where, for each period of culpable exposure, no matter how short in duration, the victim could recover full compensation from the employer and the employer, in turn, could recover a complete indemnity from any EL 5

6 insurer. In particular, even if an employer chose to take out EL insurance for only 1 year (or 1 month or potentially 1 day), but the period of culpable exposure by that employer was far, far lengthier, nonetheless the insurer would have to pick up the whole tab. 3. What was needed was a special Fairchild recoupment right, in favour of insurers. This right would operate so that (a) the insurer was obliged to provide the full indemnity as a matter of contract, but (b) having done so, the insurer would have an equitable right of recoupment in respect of those years of exposure falling outside that insurer s policy period. 4. By way of illustration, in IEGL Zurich was on risk for 6 of the 27 years of IEGL s culpable exposure. The Fairchild recoupment right would accordingly operate so that (a) Zurich paid full Compensation, but (b) it then had a right to recoup from IEGL 21/27 ths of the amount paid under the indemnity so that (c) Zurich s net financial position was the same as it would have been under Barker. 5. The Fairchild recoupment right was, however, different from Barker proration in one critical respect: the victim would never be at risk of undercompensation. This was because the insurer s foremost obligation was to provide the full indemnity, which would be passed on by the employer to the victim. Then, whether the insurer was recouped would depend upon the employer s ability to pay the recoupment thereby transferring the risk of employer insolvency to the insurer. 6. As a facet of the recoupment right, Zurich also submitted that each part-insurer should have a right of contribution against every other part-insurer enabling prorated sharing. 7. On the assumed facts in IEGL this meant that the overall financial result was: (a) Mr Carré did receive and always would receive full Compensation; (b) Zurich paid 6/27 ths ; (c) Excess paid 2/27 ths ; and (d) IEGL bore 19/27 ths of the amount 10. Four of the seven Supreme Court Justices ruled that the Fairchild recoupment right should be recognised as a novel equitable right, necessary to meet the unfairness otherwise arising to EL insurers in the Fairchild enclave. The leading judgment was given by Lord Mance (with whom Lords Carnwath, Clarke and Hodge agreed). Lord Mance s essential reasoning can be found at paragraphs Lord Hodge wrote a short separate judgment stating why he agreed with Lord Mance, rather than with Lord Sumption and the minority (paragraphs ). As to the minority of three, they agreed with the policy arguments underlying Zurich s call for a new equitable right, but they disagreed with the solution offered to address the unfairness arising to EL insurers. The minority reasoning was expressed by Lord Sumption (and adopted by Lords Neuberger and Reed). He considered that it was unprincipled and heterodox to introduce a new equitable right and he expressed fears as to unintended consequences that might arise. 10 There was an extra layer of complexity to IEGL in that IEGL had already paid the victim such that it paid 27/27 ths, but was subject to a 6/27 ths contribution from Zurich and would be entitled to seek a 2/27 ths further contribution from Excess. 6

7 Lord Sumption considered that the answer was to be found in the policy wording itself, which should be interpreted such that proration would occur when it came to the indemnity. His reasoning is at paragraphs At the heart of Lord Sumption s approach was his view that it was fallacious to argue that because any period of tortious exposure to the risk of contracting mesothelioma is enough to establish causation of the disease, it must follow that the disease was successively caused in every period of exposure (paragraph 158). He saw such a conclusion as conceptually impossible, because [m]esothelioma is caused only once (again, paragraph 158). In Lord Sumption s view, once this logical flaw was identified, it was an orthodox step to consider that (a) EL insurers were only responsible for the consequences arising from activities occurring during the period of their policies and (b) the rational response of the law, in the special Fairchild situation, was to assign the whole Compensation across the whole period of exposure so that (c) proration was achieved at the indemnity level (paragraph 160). The joint judgment of Lords Neuberger and Reed offers a fascinating insight into the challenges faced by the highest court in the land in deciding, when confronted by novel situations, whether to adapt the common law or to leave the question for Parliament. Part 6: knotty issues arising from the recognition of the Fairchild recoupment right The approach taken by the majority necessarily required consideration (albeit doubly obiter given that Mr Carré had been paid in full before IEGL sought an indemnity from Zurich) of the following further questions: (a) Did part-insurers have a right of contribution against each other under the Civil Liability (Contribution) Act 1978? (b) If the employer became insolvent prior to payment of the victim s compensation and the victim, having obtained his/her judgment for damages for personal injury, brought a claim directly against EL insurers under the Third Parties (Rights against Insurers) Act , would insurers be able to set-off its Fairchild recoupment rights in diminution of the amount otherwise payable under the contractual indemnity? As to (a), both Lord Mance expressed himself in very guarded language in paragraph 64. Lord Sumption (addressing the majority theory) was considered that the Act of 1978 did apply such as to permit sharing between part-insurers (paragraphs 181-2). As to (b), Lord Mance made some observations to the effect that there were real obstacles in the face of an EL insurer seeking to raise either a legal or equitable set-off under the Acts of 1930 or 2010 (see paragraphs 85-93). Part 7: Defence Costs The Court unanimously held that, as to Defence Costs, Zurich could not avail itself of the Fairchild recoupment right (and Lord Sumption likewise made clear that his proration approach at the indemnity level did not apply to Defence Costs). The key differences between Compensation and Defence Costs were: 11 And, one day, the Act of

8 Defence Costs were recoverable in an orthodox fashion and were untouched by the Fairchild jurisprudence. Zurich s policy contained a wholly separate and self-standing promise in relation to Defence Costs. Part 8: conclusion where do we go from here? All seven Justices were acutely conscious of the risk that the judgments in IEGL would be seized upon by lawyers as being of general application and not confined to the Fairchild enclave. Lord Mance ended his very first paragraph with a declaration explicitly designed to prevent this view taking hold: This appeal and the conclusions I reach on it are concerned exclusively with situations falling within the special rule. Nonetheless, one of the reasons Lords Neuberger and Reed gave for supporting Lord Sumption s minority approach was that, as to the majority approach and its supposed confinement to the Fairchild enclave: Enclaves are however notoriously difficult to police, and experience suggests that judicial attempts at restricting ratios may run into the same danger as when a court emphasises that a particular course is only to be taken in very exceptional circumstances. Once a principle is approved by a court (particularly, it may be said, this court) it is quite legitimate, indeed appropriate, for lawyers to invoke it and seek to apply it more generally, if it assists their clients case. Time will tell. Leigh-Ann Mulcahy QC Jamie Smith QC 4 New Square, Lincoln s Inn. 26 May

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