Mesothelioma – Apportionment – Employers’ Liability – Employer’s Liability Insurance – Compensation Act 2006
20 May 2015
Supreme Court: Lord Neuberger PSC, Lord Mance JSC, Lord Clarke JSC, Lord Sumption JSC, Lord Reed JSC, Lord Carnwath JSC, Lord Hodge JSC
The court held that the common law rule of proportionate recovery in mesothelioma cases, established in Barker v Corus  UKHL 20 continues to apply in Guernsey, where the Compensation Act 2006 does not apply. This meant that the insurer (Zurich), the appellant in this case, was only liable to indemnify the employer (IEG), the respondent, for the period when they provided insurance. This reversed the decision made by the Court of Appeal
This appeal concerned how the special rules of liability and causation for claims by victims of mesothelioma developed since Fairchild v Glenhaven apply in Guernsey. That case decided that a victim can hold liable all employers who negligently exposed them to asbestos. In Barker it was held that each employer was only liable pro-rata to the period for which they were responsible for the exposure. This was superseded by the Compensation Act 2006 making each employer liable in full, with right of contribution among themselves. Following this, the case of Trigger  UKSC 14 held that for insured employers, the necessary causation is satisfied in mesothelioma cases by the employer’s negligent exposure of the victim to asbestos, with the result that the insurer must indemnify the employer against the liability in full.
The case arose from a successful claim for compensation made by Mr Carré, who was exposed to asbestos dust by his employer, Guernsey Gas Light Co Ltd (“GGLCL”). The defendant was successor in title to GGLCL. Midland Assurance Ltd provided liability insurance for 6 of the 27 year period during which Mr Carré was exposed. The claimant, as successors to Midland’s liabilities therefore maintained that they were liable to meet 22.08% of the defendant’s loss and defence costs. The trial judge ordered the claimant to meet 22.08% of the compensation but 100% of defence costs. The Court of Appeal ordered the claimant to pay 100% of both the compensation and defence costs. The claimant appealed both decisions.
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