Typical Scenario. The Impact of Barker v Corus (UK) PLC in Mesothelioma Cases. Barker v Corus the emergence of a new tort?

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1 Barker v Corus the emergence of a new tort? 5th June Chair: Charles Gibson QC, Henderson Chambers 3 Speakers 3 Perspectives - a barrister, a solicitor and an academic: Elizabeth-Ann Gumbel QC, 1 Crown Office Row Colin Ettinger, Irwin Mitchell Roderick Bagshaw, Magdalen College, Oxford How would the civil system have dealt with Fairchild and Barker scenarios? German perspective: Thomas Lakenberg, Pauly Rechtsanwaelte, Bonn French perspective: Dr Ariane Dahan, and Dr Duncan Fairgrieve, Head of the Tort Law Centre Discussants: Jeremy Stuart-Smith QC, 4 New Square Allan Gore QC, 12 KBW The Impact of Barker v Corus (UK) PLC in Mesothelioma Cases Colin Ettinger Partner, Irwin Mitchell Joe.60. contracts mesothelioma. Typical Scenario Heating and ventilation engineer for most of his working life Employer (a) 5 years Employer (b) 1 year Employer (c) - 9 years Employer (c) is still trading and has viable insurance. Value 150,000 Barker value 84,375 (56.25%) 1

2 Non-negligent Exposure If (a) and/or (b) were non-negligent does this get (c) off the hook? Answer : No it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the Claimant himself Lord Hoffman in Barker Tracing (a) and (b) Company Registry search Identify insurer ABI Own knowledge Shared knowledge Expert Initiative Restore company 2

3 Apportionment The damages which would have been awarded against a Defendant who had actually caused the disease must be apportioned to the Defendants according to their contribution to the risks Lord Hoffman in Barker How Is The Contribution To Risk To Be Determined? The issue will depend upon the duration of the exposure for which each negligent Defendant was responsible compared with the total duration of the Claimant s exposure to the injurious agent in question. It might depend also on the intensity of the exposure for which the Defendant was responsible compared with the intensity of exposure for which the Defendant was not responsible. The exact type of agent might be a relevant factor in assessing the degree of risk. I have in mind there are different types of asbestos and some might create a greater risk than others. Other factors relevant to the degree of risk might come into the picture as well. Lord Scott in Barker Duration of exposure Intensity of exposure 3

4 Types of Asbestos Croclidolite 500 Amosite 100 Crysotile - 1 Evidence Lay evidence Expert evidence Insurance Cover Single exposure see Phillips v Syndicate Lloyds Ins.report REP.426 Multiple exposure? Insurers liability limited to period on risk 4

5 Pre- Barker Position Statement from Joe likely to be sufficient Same investigation on quantum Settlement likely without proceedings If proceedings necessary show cause procedure Trial listed within a few weeks Claim likely to be resolved within 12 months Costs Factors Significantly higher base costs Significantly higher disbursements 3 Defendants lawyers costs Court fees? How much saving?? WHAT ABOUT JOE? SOLUTION Legislation? Expert evidence may establish how each significant exposure made a contribution 5

6 How would the civil system have dealt with Fairchild and Barker scenarios? The German perspective: RA Thomas Lakenberg Pauly Rechtsanwälte Bonn, Germany Sec. 823(1) BGB A person who, wilfully or negligently, unlawfully injures the life, body, health, freedom, property or other right of another is bound to compensate him for any damage arising therefrom. Principles of causation Conditio sine qua non ( but for ) Adequate causation If some action is generally able to cause a certain result and not only under very peculiar, improbable circumstances that are not regularly to be taken into account, it will be held to have adequately caused that result. (BGH, , NJW 1990, 2882) Purpose of the duty of care In the damage, the very danger must have materialised which the duty, that the defendant was in breach of, sought to avoid. (BGH, , BGHSt 11, 1) 6

7 Cumulative causation BGH, , NJW 1990, 2882 A lawyer misinforms his client about the existence of a fixation of the lease price for the building the client wants to buy and resell. The public notary who is to notarise the sales contract relies on the information of the lawyer and overlooks the mistake. The principle If A and B set separate causes for an injury which are each not sufficient, but necessary for the injury to happen, they are both jointly and severally liable. Double causation BGH, , BGHZ 118, 263 The claimant applied for a building license which was refused on two grounds: The building authority held that the planned building was impermissible and the local community had not consented to the plan which was binding on the building authority. The principle If A and B have set separate causes, which each would have been sufficient to cause the whole damage, they are both jointly and severally liable. The principle Alternative causation If the injury and the damage may have been caused either only by A or only by B (or only by the combination of both causes), none of them will be liable. The exception to the rule Sec. 830(1) BGB: "If several persons have caused damage by an unlawful act committed in common, each is responsible for the damage. The same rule applies if it cannot be discovered which of several participants has caused the damage by his act." 7

8 The requirements The claimant is sure to have suffered a damage at the hands of either A or B and both have set the risk for such damage. Both have acted unlawfully (i.e., were in breach of duty). A and B can be regarded as participants. BGH, , BGHZ 33, 286 C was run over by a car driven by A, and before he could get up again, he was again run over by B. The lower leg had to be amputated. It remained unclear whether the injury inflicted by A would already have led to the amputation or whether only B did cause the decisive fracture. Held: Both A and B were liable under sec. 823 BGB. Sec. 830(1) sent. 2 BGB requires an incident which is made up of separate unlawful actions that are connected by time and space, but do not have to happen simultaneously. BGH, , BGHZ 60, 177 C lost control over his car, was hurled out of the car onto the street and run over by another cardriver, A. The injuries and the subsequent death of C could have already been caused when he hit the ground or later when he was being run over by A. Held: Sec. 830(1) sent. 2 BGB does not apply, when it is uncertain whether the claimant himself alone or the defendant or both have caused the damage. In this case, however, the court of appeal was ordered to re-open the trial because it had not correctly balanced the facts. 8

9 The extent of the liability Jointly and severally liable to the claimant, sec. 840(1) BGB. In relation to each other, the defendants may have to account for a higher or lesser quota than 50 %. Sec. 254(1) BGB looks to the extent to which the damage has been caused by the action of the different defendants. Applying the cases to Fairchild and Barker scenarios No case law at hand. Legislators thought of fights and brawls, which are closer to car accidents then to asbestos exposure. Similarity of risks as well as connection as to time in cases of subsequent employments might still suffice. Statutory insurance of employees against employment-related diseases Sec. 2 SGB VII: Every employee. Sec. 9(1) sent. 2 SGB VII: The Federal Government is authorised to declare by way of regulation such diseases to be employment-related diseases which, according to the insights of the medical sciences, are caused by special circumstances to which certain groups of people are exposed in a much higher degree than the rest of the population because of their employment;... 9

10 Asbestos-related diseases 4103 Asbestosis or an affection of the pleura caused by pneumoconiosis 4104 Lung cancer or laryngeal cancer in combination with asbestosis in combination with an affection of the pleura caused by pneumoconiosis When the person has been exposed to a cumulative asbestos dust dosis of 25 fibre years (25 x 10 6 [fibres/cbm] x years) 4105 Asbestos-related mesothelioma of the pleura, the peritoneum or the pericardium Unlisted diseases Sec. 9(2) SGB VII: The insurers have to accept a disease as an employment-related disease even though it is not mentioned in the regulation or if the requirements laid down in the regulation are not met, if at the time of the decision about the employee s application and according to new insights of the medical sciences the requirements of subsec. 1 sent. 2 are met. The privileged employer Sec. 104(1) SGB VII (excerpts): Employers are only liable to compensate their employees for personal injury inflicted by an insured event if they have wilfully caused the event of if they have caused the event on one of the ways to and from work as specified in sec. 8(2) Nr. 2-4 SGB VII. There will be no subrogation under sec. 116 SGB X in these cases. 10

11 Procedural issues Social security law is public law. Special courts ( social courts) have to establish the facts ex officio. The burden of proof stays with the claimant who has to provide the court with facts that may led the court to investigate further. (BSG, , B 2 U 25/03 R, not published.) 11