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Mesothelioma claimant's victory in Court of Appeal

The sister of a mesothelioma victim who died in 2002 Isolene Clarke, has again been successful in court in litigation following from the House of Lords judgment in Barker –v– Corus (UK) Plc.

Photo: istock

10 July 2006

The sister of a mesothelioma victim who died in 2002 Isolene Clarke, has again been successful in court in litigation following from the House of Lords judgment in Barker –v– Corus (UK) Plc.

Mrs Clark’s brother, Kenneth Simpson, worked with various companies as a “burner” demolishing old pipes and boilers and was exposed to significant quantities of asbestos.  He subsequently developed the asbestos-related cancer, mesothelioma, which caused his unfortunate death in 2002.  His sister who cared for him throughout his illness instructed Leigh Day & Co to claim compensation for her brother’s death.

Although Kenneth worked for several employers proceedings could only be brought against one of those companies because the other employers had gone out of business and their insurers could not be traced.  Under the law as it stood then, Mrs Clarke was awarded the full extent of her damages, £82,000, from Skanska Construction UK Limited, the successor to one of Kenneth’s former employers.

However the defendant obtained leave to appeal in the event that the law changed in the future.  In May 2006 the House of Lords handed down their judgment in Barker –v– Corus (UK) Plc ruling that even when it cannot be said which employer caused the mesothelioma damages had to be divided between all of those employers who exposed the victim to asbestos.  The implication of this judgment on Mrs Clarke was that she would have to repay some of her damages to the defendant.  This is despite the fact that she would be unable to claim this compensation from Kenneth’s other employers because records of their insurance could not be traced.

Mesothelioma

Mesothelioma is thought to be caused by one or only a few asbestos fibres.  It is described as an “indivisible disease” because it cannot be said which employer exposed the victim to the fibres which caused the cancer and as such it cannot be “divided up” between different employers.  The law before Barker meant that victims could claim the full compensation from just one employer because that employer significantly increased the risk of the victim developing mesothelioma by exposing them to the fibres which may have caused the disease.

The Barker decision has been universally condemned as prejudicing mesothelioma victims.  Legislation has already been unanimously adopted by the Scottish Parliament to restore the law to its pre-Barker position.  It is hoped that the English Parliament will do the same before it breaks for the Summer recess on 17 July 2006 through the Compensation Bill.

Although it appears considerably likely that the law will be restored the defendants to Mrs Clarke’s claim appealed against her case asking for the damages to be apportioned with Kenneth’s other employers.  Mrs Clarke asked the court to postpone any decision on the appeal until the English Parliament has considered legislation to reverse the Barker judgment.  However the defendant wanted to press ahead so that they could recover part of Mrs Clarke’s damages.

Court of Appeal

At a hearing in the Court of Appeal on 6 July 2006 before Mrs Justice Cox, Mrs Clarke was successful in persuading the Court that the pragmatic approach was to stay the appeal until October to allow the parties time to consider any legislative change to compensation for mesothelioma victims.

This followed on from Mrs Clarke’s success in July 2005 when the defendant unsuccessfully sought to delay the payment of her damages.

Her solicitor, Daniel Easton’s comments:
"The appeal of Mrs Clarke’s case was unnecessary and has only served to incur legal costs on both sides unnecessarily.  We have only ever sought to deal with this difficult issue on a pragmatic basis and when it is apparent that legislation is likely to go before Parliament within weeks, it seems only sensible to await the outcome of that legislation before trying to deal with the repercussion on cases that it affects.

I am of course pleased that Mrs Clarke was successful and the Court sympathised with our arguments.  However the whole matter could have been avoided without the need for pursuing unnecessary litigation and increasing legal costs.

We can now only hope that Parliament sees fit to restore the law as to new mesothelioma claims as to its pre-Barker days.  In addition, it is essential that any legislation introduced is retrospective so that no mesothelioma victims are caught in the lacuna between the Barker judgement and the legislation."


For further information please contact Daniel Easton on 020 7650 1200.

Information was correct at time of publishing. See terms and conditions for further details.

Information was correct at time of publishing. See terms and conditions for further details.

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