This Bulletin was prepared before this decision was published and there was not enough time to prepare a full note about this very important judgment. That will come in the next Bulletin.

Briefly ,where a worker contracted mesothelioma after exposure to asbestos dust by more than one employer ,his damages were to be apportioned among the persons responsible for the exposure according to the relative degree of contribution to the chance of the worker contracting the disease.

Barker v Corus(UK) plc ,House of Lords May 4 2006

Payment from a provident fund scheme not deductible

The Court of Appeal has considered a case where the deceased died from mesothelioma for which the defendants were liable. After his death, the defendants made a payment to his estate under a provident fund scheme of which he had been a member. The scheme provided for a payment under Rule 9 on termination of service which had accrued before death and had been paid to his estate, and for payment on retirement under Rule 13.

The widow argued that her dependency claim included an amount in respect of her husband’s expectation of receiving a retirement payment under Rule 13, and that the Rule 9 payment should not be taken into account by virtue of the Fatal Accidents Act 1976.

The employers argued that the deceased, having received benefits under Rule 9, had exhausted his rights under the scheme and was therefore not qualified for a Rule 13 payment; or alternatively that the widow had suffered no loss because she had already received the termination of service payment, which was in effect the same as the retirement benefit.

The court held that, if the deceased had not died as a result of the defendants’ fault, he would have lived to retirement and would have received his Rule 13 benefits. The fact that his service had been terminated and that he had been paid the Rule 9 benefits had to be ignored because that would not have occurred if the employers had not been at fault.

On the balance of probabilities, but for the employer’s fault, the deceased would have retired and would have received the Rule 13 benefits and that is what he and the widow had lost by his premature death. The Rule 9 payment was made on a different occasion and for a different reason than the Rule 13 payment and simply was not the same thing.

Harland & Wolff Plc & Husbands Limited -v- McIntyre. Court of Appeal, 28 March 2006