Barker v Corus (UK) plc [2006] UKHL 20
Citation:Barker v Corus (UK) plc [2006] UKHL 20
Rule of thumb 1:How is joint and several liability worked out as a percentage? The contribution that each person made to the damages has to be stated as a percentage.
Rule of thumb 2:How is joint and several liability worked out in industrial disease cases? The total time the person has worked in each organisation as has to be worked out as a % of their total time exposed across all organisations, and that is the % of the damages they owe.
Background facts:
The facts were that the plaintiff had an industrial lung disease caused by not having appropriate masking – he worked at several places and it was not known which one first caused the particles to get into his lungs, with it only taking 1 particle getting into the lung and becoming malignant to cause the damage, so any of the place he worked could have been liable for this.
Judgment:
The Court held that they all had to take a percentage share of the blame based on the amount of relative time he worked in each place. It was confirmed that in industrial injuries/diseases cases, where it is not known who actually caused the damage to the organ and it could have been many different people, damages should be apportioned according to the % chance of having caused. People only have to pay a percentage for the likely chance that they caused it – this is known as the principle of proportionate justice applying rather than joint and several liability. The Court held that where many separate entities have contributed to a wrongdoing causing damages, then by the principle of joint and several liability only one of them has to be sued as it is up to this wrongdoer liable to bring the other people they acted in concert with into the action, and they can work out percentage liability contributions from there.
Ratio-decidendi:
‘In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm’, Lord Hoffman
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.