NEGLIGENCE - DAMAGES - PERSONAL INJURY

CAUSATION : MESOTHELIOMA : APPORTIONMENT : SELF EMPLOYMENT : DAMAGES FOR NEGLIGENT EXPOSURE TO ASBESTOS BY EMPLOYER DESPITE EXPOSURE DURING PERIOD OF SELF EMPLOYMENT : NO APPORTIONMENT OF DAMAGES BY REFERENCE TO PERIODS OF EMPLOYMENT : ASBESTOS : INNOCENT VICTIMS : POLICY ELEMENT : INDIVISIBLE INJURY : CONTRIBUTORY NEGLIGENCE

A claim against an employer, arising from the death of a worker who was negligently exposed to asbestos, succeeded despite the fact that the deceased has also been exposed to asbestos during a substantial period of self-employment and the damages awarded were not to be apportioned to reflect the periods of exposure in different employments.

The employer (S) appealed against the decision awarding damages to the widow (B) of a man (D) who died from mesothelioma contracted as a result of exposure to asbestos dust. There were three relevant periods during which D was exposed to asbestos: a period for which S was responsible, a period during which D was working for another company and a substantial period of self-employment. The judge held that B could bring the cause of D's death within the principle of the causal requirements for establishing liability for mesothelioma as explained in Fairchild v Glenhaven Funeral Services Ltd & Ors (2002) UKHL 22 notwithstanding D's exposure to asbestos when self-employed. The damages awarded were reduced by one-fifth for contributory negligence but the judge declined to reduce them further to reflect an apportionment by reference to the period of employment for which S was responsible. S submitted that (1) the test of causation in Fairchild (supra) was based on the premise that the claimant was an innocent victim of the negligent acts of the various employers which could not be the case where one element of the overall exposure was a period of self-employment; and (2) the damages ought in any event to be apportioned between the periods of exposure in different employments.

HELD: (1) D's status as an innocent victim was not an essential prerequisite of the rest of causation in Fairchild. Fairchild contained a policy element and, as the judge held, it would be inconsistent with that policy to deprive a self-employed person of any redress in respect of the period or periods when he was employed by an employer and exposed to asbestos in breach of duty. (2) If normal principles were applied there would be no apportionment on the basis that there was an indivisible injury. The modification of the causation rules on policy grounds did not require any corresponding modification of the apportionment rules.

Appeal dismissed.

SYLVIA BARKER v SAINT GOBAIN PIPELINES PLC (2004)

CA (Civ Div) (Kay LJ, Keene LJ, Wall LJ) 5/5/2004