Rule of proportionate recovery established in Barker case continues to represent the common law position

Supreme Court of United Kingdom– The appeal before the Court from Guernsey concerns the special rules of liability and causation for claims by victims of mesothelioma, caused by exposure to asbestos, developed in and since the House of Lords’ decision in Fairchild v Glenhaven Funeral Services Ltd 2003 1 AC 32 wherein the main issues were whether the proportionate recovery rule in Barker v Corus UK Ltd 2006 2 AC 572 still exists at common law as Guernsey has not passed any law equivalent to the United Kingdom’s Compensation Act 2006, and if Barker does not apply and the position in Guernsey is now the same as in the UK under the 2006 Act, whether such an insurer is liable in the first instance for the whole of the employer’s liability to the victim, and if so, whether the insurer has pro rata rights to contribution from any other insurer of that employer or from the employer in respect of any periods not covered by the insurer.

The Court in order to reach any conclusion discussed the principles explained in Fairchild wherein it was held that a victim can hold liable all employers who negligently exposed him to asbestos, the Barker case where it was held that each such employer was only liable pro rata to the period which exposure by it bore to the total of all periods of exposure and also Trigger case (Durham v BAI (Run-Off) Ltd 2012 UKSC 14, 2012 1 WLR 867) where again it was held that an employer’s liability insurer must indemnify the employer against exposure-based liability incurred under the principle in Fairchild. The Court also highlighted the fact that the parliament reversed Barker in the UK by the 2006 Act, making each employer liable in full, with rights of contribution among themselves.

Keeping in mind the legal position created by the abovestated cases such that neither the 2006 Act nor Trigger is inconsistent with or undermines the decision in Barker, the Court while deciding the present appeal unanimously upheld the trial judge’s order stating that rule of proportionate recovery established in Barker continues to represent the common law position which applies in Guernsey and allowed the appeal in respect of compensation but dismissed the appeal in relation to defence costs. Zurich Insurance v. International Energy Group Ltd., 2015 UKSC 33, decided on 20.05.2015

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