Government moves to reverse Lords ruling on mesothelioma compensation
Proposals to help
mesothelioma sufferers receive proper compensation were put forward by
Lord Falconer, Secretary of State for Constitutional Affairs and Lord
Chancellor, and John Hutton, Secretary of State for the Department of
Works and Pensions, today (June 20).
Legislation will be brought forward to improve the system of making claims
involving more than one negligent employer.
Lord Falconer said: "The Government is acting quickly to help claimants
suffering from this terrible disease to receive the compensation to which
they are entitled as soon as possible.
"I intend to bring forward an amendment to the Compensation Bill
to provide that in these cases negligent employers should be jointly and
severally liable, so that the claimant can recover full compensation from
any relevant employer. It would then be open to that employer to seek
a contribution to the damages awarded from other negligent employers."
Secretary of State for the Department of Work and Pensions, John Hutton
said: "This will bring a better chance of compensation for thousands
of people who contract mesothelioma because they were exposed to asbestos
at work.
"I have seen first hand the devastating effect this disease can have
on individuals and their families - it can lie dormant for years then
kill quickly. The consequences of the Barker judgment would have made
it much more difficult for sufferers and their families to get the compensation
they deserve, so I am pleased to announce today that we are going to take
action to make claims easier."
Notes to editors:
1. Mesothelioma is a cancer of the lining of the lungs or abdomen. It
is almost always caused by exposure to asbestos.
2. The decision to legislate arises from the recent House of Lords judgment
in Barker v Corus and conjoined cases. This case raised issues left unresolved
by the case of Fairchild v. Glenhaven Funeral Services Ltd in 2002. In
the Fairchild case the House of Lords held that a worker who contracted
mesothelioma after wrongful exposure to asbestos at different times by
more than one employer or occupier of premises could sue any of them,
notwithstanding that he could not prove which exposure actually caused
the disease, for all had materially contributed to the risk of contracting
the disease. That created an exception to the normal rule requiring proof
of causation, which would otherwise have prevented the claimant from recovering
any compensation from any of the employers responsible for exposing him
to the asbestos. It did not, however, resolve the precise nature of the
employers' liability, and whether they should be jointly and severally
liable or liability should be apportioned among them; although it was
presumed by insurers that the joint and several liability would be the
rule.
3. It is that issue which was the subject of Barker v Corus. The House
of Lords has now determined that in a case a within the boundaries of
the Fairchild exception, where a worker has contracted mesothelioma after
wrongful exposure to asbestos at different times by more than one employer,
his damages are to be apportioned among the employers responsible for
the wrongful exposure according to their relative degree of contribution
to the chance of the worker contracting the disease. That does not mean
that there is a limit in principle on the damages which may be recovered
from those responsible for the exposure to asbestos. But it does mean
in practice that the claimant will have to trace all relevant defendants
(as far as this is possible) before liability can be apportioned and compensation
paid, or issue multiple claims, and that the risk of any of them being
insolvent and unable to pay the appropriate share will fall on the claimant.
This will make claims much more difficult and time-consuming for claimants
to bring and in some cases they will not receive full compensation.
4. The Compensation Bill begins its Committee Stage in the House of Commons
today. More details on the Bill and its progress are here http://www.dca.gov.uk/legist/compensation.htm
6 July 2006
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