Mesothelioma and multiple employers: joint and several liability (Compensation Act 2006 s.3)
Terence worked as a lagger for three companies in England. Each negligently exposed him to asbestos: Allbright Ltd for 10 years, Brennan Ltd for 5 years and Castell Ltd for 5 years. He has now been diagnosed with mesothelioma. Because of the nature of the disease, it is impossible to say which exposure caused it. All three companies are still trading. Terence sues only Brennan Ltd, and it is accepted that Brennan Ltd is liable in tort because its exposure materially increased the risk of his illness.
Which of the following best describes Brennan Ltd's liability to Terence?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: Brennan Ltd is liable for the whole of Terence's damages, jointly and severally with the others, but may claim contribution from them.
THE RULE TO REMEMBER
In mesothelioma cases, each negligent exposer liable in tort is liable for the whole damage, jointly and severally, with contribution between defendants normally by relative periods of exposure.
Mesothelioma and multiple employers: joint and several liability (Compensation Act 2006 s.3)
Section 3 of the Compensation Act 2006 applies where a responsible person has negligently exposed the victim to asbestos, the victim has contracted mesothelioma, it is impossible to determine which exposure caused the illness, and the responsible person is liable in tort (whether by reason of having materially increased a risk or otherwise). Each of those conditions is met. Under s.3(2) Brennan Ltd is liable in respect of the whole of the damage caused by the disease, jointly and severally with any other responsible person. Terence can therefore recover his full damages from Brennan Ltd alone. Under s.3(3)(a) Brennan Ltd may claim contribution from Allbright Ltd and Castell Ltd. By s.3(4), the court will normally decide those contributions by the relative lengths of the periods of exposure, unless the parties agree otherwise or the court thinks another basis more appropriate.
Why A is wrong: Section 3(2) reversed the proportionate approach for mesothelioma; apportionment by exposure applies only between defendants on contribution.
Why B is wrong: For mesothelioma, liability rests on material increase in risk; s.3 applies precisely because but-for causation cannot be proved.
Why D is wrong: Liability is joint and several, so the claimant may sue any one responsible person for the whole loss.
Why E is wrong: Section 3(3)(a) expressly preserves one responsible person's right to claim contribution from another.
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