Asbestos-related Lung Cancer: Compensation Act 2006

Sarah Sackman Excerpts

Monday 16th March 2026 Commons Chamber

[The Minister for Courts and Legal Services (Sarah Sackman)]

I thank my hon. Friend the Member for West Dunbartonshire (Douglas McAllister) for securing this debate. We have all been treated to a fine and thoughtful speech. He is without doubt a tireless advocate for his constituency—for Clydebank, Dumbarton, and the communities ravaged by the diseases that he has described. I extend my sympathies to all those who have suffered with asbestos-related diseases, made sick by their places of work and the conditions in which they should have been kept safe.

This is no doubt an incredibly important issue, which involves a complicated area of law where the common law and legislation have developed a complex and nuanced set of rules. I will set out the general position on causation and liability in negligence claims. The usual test for causation in negligence cases is the “but for” test—that is, whether the claimant’s harm would have happened but for the defendant’s breach in the duty of care owed to the claimant. If the claimant proves on the balance of probabilities that it would not have occurred without the breach, causation is established. Causation in industrial injury litigation that involves exposure to asbestos can be particularly complex, given that normally the claimant’s condition will have been caused by prolonged exposure to asbestos, involving many incidents and several different employers.

When determining liability and compensation, the courts draw a distinction between divisible and indivisible injuries. In England and Wales, liability and compensation for divisible industrial diseases, which is where the condition worsens with long-term exposure, is apportioned between previous employers, with each defendant liable only for the period of negligent exposure they caused. In the context of industrial injuries, indivisible diseases are conditions where the harm is treated as a single whole injury, because it cannot be medically or causally divided between different workplace exposures. It is usually impossible to know which specific exposure caused the injury. Under the normal rules, that would mean an employee who worked at different companies would likely fail in any legal claim because they cannot prove which employer caused them harm. Mesothelioma, for example, is treated as an indivisible disease.

As my hon. Friend eloquently set out, there have been a number of legal developments in recent years regarding liability and compensation for mesothelioma. In Fairchild v. Glenhaven Funeral Services Ltd, the House of Lords created a special rule for cases such as mesothelioma, where a claimant has been negligently exposed to asbestos by multiple employers but cannot prove which exposure caused the disease. In such cases, if an employer negligently exposed a worker to asbestos and thereby materially increased the risk of mesothelioma, they can be held liable even if the claimant cannot prove that that employer’s exposure actually caused the cancer. In short, the “materially increased risk” test replaced the “but for” test.

However, in Barker v. Corus, the House of Lords accepted that the Fairchild exception—that is, the materially increased risk test—still applied, but it also addressed the consequences of that liability. The court held that defendants were not jointly and severally liable, as had previously been understood, but instead liable only on a proportionate basis, reflecting their respective contributions to the overall risk.

In response, Parliament acted with cross-party consensus to enact the Compensation Act 2006, which reversed the effect of Barker v. Corus for mesothelioma claims. Section 3 of the Act reinstated the principle that victims could claim full compensation from any liable party, who can then seek contributions from others responsible for the exposure. That is vital in mesothelioma cases specifically, as it is not possible to establish which workplace fibres triggered the process of carcinogenesis. Equally, there is no action an individual can take that increases or decreases their chances of developing the disease. At the time of passing the 2006 Act, the broad political consensus was that due to the unique pathology of mesothelioma, the Barker ruling had to be reversed. Otherwise, there was a real risk of claimants being unable to seek the compensation that they deserved. As such, it was decided that as a unique disease, mesothelioma required a distinct legal remedy.

However, as we have heard, in terms of the life-changing effects and ill health that asbestos-related lung cancer can bring, in reality, the situation for many sufferers is little different for other non-mesothelioma claims, and the Barker ruling still applies to them. That was affirmed in Heneghan v. Manchester Dry Docks Ltd, in which it was held that the materially increased risk test of Fairchild applies to those claims, while the joint and severally liable principle introduced by section 3 of the Compensation Act 2006 is limited to claims relating to mesothelioma. Broadly, the courts accept that the materially increased risk test is proven for those claims if medical evidence shows that the asbestos exposure more than doubled the relative risk.

This area of law is a mix of devolved and reserved matters. The Scottish Parliament agreed via a legislative consent motion to UK-wide legislation that became section 3 of the Compensation Act. I want to assure my hon. Friend and the House that the UK Government are committed to ensuring that necessary support is available to all individuals suffering from asbestos-related conditions, including asbestos-related lung cancer. Eligible individuals can receive industrial injuries disablement benefit—a weekly no-fault payment for work-related diseases such as asbestos-related lung cancer. The Scottish Government plan to replace the IIDB with employment injury assistance, and work is under way to manage that transition.

Although the UK Government have no immediate plans to review the current legal framework in England and Wales, which has been the subject of much detailed analysis and determination in the senior courts, I am grateful to my hon. Friend for the attention that he has put on this issue. He and I have had the chance to speak outside the Chamber about how the law might be developed. I am grateful to him for securing the debate and giving me the opportunity to set out the UK Government’s position on what is, without doubt, a complex and intricate area of law, but one that has a significant impact on the lives of those who suffer from industrial-related diseases. In response to his question—or, dare I say, challenge—I will of course meet him and relevant organisations to discuss how the law might be reviewed to ensure that sufferers and their families can be treated fairly. I think that that is the right and careful approach, and I look forward to working with him.

Question put and agreed to.