Court of Appeal clarifies position on employers liability for mesothelioma
19 February 2007
City insurance lawyers say that last week's Court of Appeal decision in Brett v University of Reading helps clarify an employers liability to mesothelioma claimants, following the outcry caused by the House of Lords decision last year in Barker v Corus.
The Brett case concerned liability towards the estate of a man who had died from mesothelioma after being exposed to airborne asbestos fibres in the course of his employment with the University, along with similar exposure whilst working for other employers.
It is the first case to come before the Court of Appeal since the House of Lords decision in May 2006 in Barker v Corus, which caused such outcry from trade unions and personal injury claimant lawyers that the Government intervened in the passage of the Compensation Act 2006 and included a new section 3. That section now effectively reverses the decision in Barker and restores it to the position in the previous leading case of Fairchild v Glenhaven.
The decisions in Fairchild, Barker and the new section 3 of the Compensation Act are concerned with whether there should be an exception to the usual English law principles concerning what a claimant must prove by way of causation, in circumstances where he can prove exposure to asbestos at different times, with different employers and that there were breaches of a duty of care by those employers but where he cannot prove which employer actually caused him to contract mesothelioma.
In Brett, the Court of Appeal dismissed the claim by his estate because although they were able to demonstrate that Mr Brett had been exposed to airborne asbestos fibres whilst working for the University, along with similar exposure whilst working for other employers, they could not prove breach of duty of care by the University at the time of exposure.
Colin Peck, a partner in the insurance and reinsurance group at City law firm LG comments: "The decision in Brett v University of Reading is a timely reminder by the Court of Appeal that, although English law does allow the 'Fairchild exception' on proving causation where an individual contracts mesothelioma as a result of having been exposed to asbestos by several different employers, the claimant must still be able to prove that the employers breached their duty of care towards him at the relevant time. The English courts will not presume such breach of duty by the employer."
Notes to editors
LG is a London-based law firm with over 270 lawyers. It's Insurance and Reinsurance Group provides a full range of legal and business advisory services to the industry, ranging from transactional, regulatory and outsourcing solutions through to advice on often complex, high value, multi-jurisdictional disputes.
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