Barker was exposed to asbestos in his course of employment with several employers, but also in the course of self-employment. He developed mesothelioma and sued for damages. He was unsuccessful at the lower courts and appealed to the House of Lords.
- Does it matter that the plaintiff was one of the parties that might have contributed to the injury?
Hoffman, in the majority, states that the purpose of Fairchild can be applied here. He states that it does not matter that Barker was one of the parties that helped cause the injury - the liability of the other two parties depends only on their own actions and not on those of other parties. Therefore, the other two parties are still liable – however the damages are divided according to the probability of each respondant causing the harm.
In the dissent, Rodger of Earlsferry states that Fairchild cannot apply here because it tips the scales too far in favour of Barker. It is essentially stating that in cases exactly like this a plaintiff recovers unconditionally, however if the case only differs a little bit then plaintiffs cannot recover for suffering the increased risk of an injury. He also talks about how dividing damages is bad, because claimants often end up with only a small proportion of the damages that they deserve.
Fairchild applies even if the plaintiff himself is one of the causes of the injury, but the damages are divided up based on the probability of each party’s actions causing the harm.