The Government is to amend the Compensation Bill to reverse the effect of the House of Lords ruling in the case of Barker.

Thompsons has issued a press release in which Ian McFall welcomes the decision but urges the Government to cover all pending claims in the proposed amendment to the bill.

Below is an example of an asbestos hearing heard since Barker was decided.

Crucially, the recorder below was happy to include a rider in his order that the claimant would have leave to return to the court should legislation change the position to a situation where a claimant recovers 100 per cent against negligent employers in an asbestos case, as was the case pre-Barker ,and as is contemplated in the future legislation.

An asbestos judgement post Barker

The claimant had been harmfully exposed to asbestos with two different employers. He worked with laggers on ships for the first defendant for two years , then for 14 years cutting asbestos sheets with the second defendant.

The second defendant obtained an engineer’s report from Peter Deary. If the judge had assessed damages on a time exposed apportionment basis, in line with ABI guidelines, then the claimant would have recovered 65 per cent of his full damages against the two defendants.

However, Mr Deary assessed damage not on time but on the intensity of the exposure in line with the decision of Barker, and this allowed the claimant to recover 80 per cent of full potential damages. The claimant therefore decided to adopt the report of Mr Deary with the second defendant.

Mr Deary apportioned damages 31 per cent/49 per cent between the first and second defendant. The first defendant was unhappy with the contents of Mr Deary’s report. They argued he could not attribute blame for conditions on their ship so long after exposure and that he was not entitled to draw a conclusion that they were 31 per cent to blame for the claimant’s condition. A time-based calculation of damage was more appropriate.

The Judge found, citing Barker at paragraphs 43,48 (Hoffman), 62 (the judgment of LJ Scott which he said was very helpful) and LJ Walker (para 109) that the House of Lords has clearly rejected simple time-exposed apportionment calculations of damage.

Mr Deary’s consideration of what damage the various work places have done was careful and reasoned and gave appropriate weight to different exposure at different places. If a man was exposed to large amounts of dust in a limited space with lack of extraction then the higher relative risk should be reflected in the outcome of such a case.

The claimant was entitled to 100 per cent of costs for the case rather than apportionment on costs as well as damages.

The claimant was aware of the proposed change in legislation but wanted the case heard on the day as he was returning to Australia. As above, the Judge was happy to include a rider protecting his rights to appeal the award should legislation be enacted which retrospectively allowed for further recovery.

Peter Cowan was counsel for the claimant.

Alvin Milner -v- John Laing Plc. 19 June 2006, Leeds County Court.