English Tort Law Essay

Answer: This question raises some issues from negligence. In order to answer this question it is necessary to know about negligence, duty of care, and breach of duty, causation and remoteness. But here the most important parts are employers’ liability, multiple liability or causation, and personal injury. Here the main findings will be Betty Bloke is an employee of these companies or not, she can sue for asbestos-related mesothelioma as a third person. Here the facts are Harry Bloke worked as a carpenter for thirty-five years, being employed by Right Ltd for ten years, then by Ruff Ltd for a further ten years and then by Shoddy plc for fifteen years. Right Ltd were shop fitters, Ruff Ltd produced asbestos prefabricated garages and Shoddy plc produced insulating panels for the building industry. In all of these jobs he was required to work with asbestos sheeting, which he usually had to cut to size either with hand saws or powered saws. Betty Bloke, Harry’s wife, always washed his work overalls every Saturday. She would shake them outside the back door to remove the dust before she put them in the washing machine. Betty has now been diagnosed with asbestos-related mesothelioma and is very ill. All three companies deny liability for her illness. Before attempt to discuss the potential liability of all three companies to Betty in negligence it is necessary to find the relationship between Betty and all three companies. Here it is not clear that Betty was an employee of these companies or not, though every Saturday remove the dust. In 1934 Lord Wright said in Lochgelly Iron and Coal Co v McMullan [1934], ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’ In Murphy v Brentwood District Council [1990], the House of Lords held that the council was not liable on the basis that the council could not owe a greater duty of care to the claimant than the builder. In doing so the court also overruled Anns and the two-part test, preferring instead a new three-part test suggested by Lords Keith, Oliver and Bridge in Caparo v Dickman [1990]. In order to impose liability on the employers, Betty has to established foresight, proximity and fairness and it is the current test. In Caparo industries v Dickman [1990], the shareholders in a company bought more shares and then made a successful takeover bid for the company after studying the audited accounts prepared by the defendants. They later regretted the move and sued the auditors claiming that they had relied on accounts, which had shown a sizeable surplus rather than the deficit that was in fact the case. The House of Lords held that the auditors owed no duty of care since company accounts are not prepared for the purposes of people taking over a company and cannot then be relied on by them for such purposes. Harry was an employee but the asbestos did not affect him. His wife suffered mesothelioma, so the current test has to show three things if there is to be a duty of care: 1) It was reasonably foreseeable that a person in the claimant’s position would be injured. Here for Betty Bloke, the risk was reasonably foreseeable as an employee but as a third party it is difficult to show. 2) There was sufficient proximity between the parties. Employers owed some duties to employees. 3) It is fair, just and reasonable to impose liability. After the Caparo test Betty may be satisfy three criteria. Then it will be a vital question that Employers breach any duty or not. The second problem is who has right to sue. Harry was an employee but he is not suffered any disease though it was obvious. If Harry sues on behalf of Betty then it will justify imposing liability to the employers. Here it will be discussed considering the relevant case laws. Bolton v. Stone test may be applicable to prove breach of duty. According to this test employers are not liable. As a general rule English law does not impose a duty, reasoning that the fault of X and not that of D. But exceptionally a duty may arise. Employers are vicariously liable for the negligent acts or omissions. Employers are also liable under the common law principle represented in the Latin phrase, â€Å"qui facit per alium facit per se†. So according to Home Office v Dorset Yacht [1970], and Lewis case it will be consider here. In Hotson v East Berkshire AHA [1987], a young boy suffered a fractured hip when he fell out of a tree. The hospital negligently failed to make a correct early diagnosis so that he later developed avuncular necrosis, a deformity of the even without the failure to diagnosis promptly. On this basis the trial judge, and later the Court of Appeal, awarded him 25 per cent of the damages they would consider appropriate for the loss of a chance of recovery. The trial judge commented that the hospital had translated the probability of the disability developing into a certainty by negligence in their failure to diagnosis. However, the House of Lords allowed the Health Authority’s appeal and would not consider the slim chance of recovery an issue of causation. In Blythe v Birmingham Waterworks [1856], the basic Rule is that the defendant must conform to the standard of care expected of a reasonable person. ‘Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinary regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do. Betty could get compensation by applying McGhee. In McGhee v National Coal Board [1973], here the claimant worked in a brick kiln where he was exposed to brick dust, a possible cause of the dermatitis that he in fact contracted. The Board was not liable for exposure during working hours. They were held liable for materially increasing the risk of the claimant contracting the disease because of their failure to provide washing facilities, even though it could not be shown that he could have avoided the disease if there had been facilities the reasoning of the court was that, since the employer was clearly negligent in failing to provide basic health and safety the burden should shift on to them to disproved the causal link. This type of test is clearly more advantageous to a claimant than the basic ‘but for’ test applied so rigidly in Hotson v East Berkshire AHA [1987]. To identify the employer’s liability suffered mesothelioma after exposure to asbestos dust of Betty Fairchild v Glenhaven Funeral Services Ltd and others is the most significant test. In the case of Fairchild v Glenhaven Funeral Services Ltd and others [2001], the claimants suffered mesothelioma after exposure to asbestos dust over many years working for a number of different employees. The medical evidence identified hat the inhaling of asbestos fibres was the cause of the disease. Nevertheless, it was impossible to identify in which particular employment the disease was actually contracted. The Court of Appeal accepted that medical evidence could not identify a single cause of the disease, which might be caused by contact with even single asbestos fibre, or may involve cumulative exposure to fibres. The Court of Appeal in fact rejected the claims. The HLs, accepted the expert evidence that it is scientifically uncertain whether inhaling a single fibre or inhalation of many fibres causes the disease. However, the HLs held that, because it is evident that the greater the exposure has a duty to take reasonable care to prevent employees from inhaling the dust. Besides this the House felt that any other cause of developing the diseases could be ignored in the case. On the basis that the claimants suffered the very injuries that the defendants supposed to guard against, the HLs were prepare to impose liability on all employers. The House chose to apply the ‘material risk’ test from McGhee. In doing so the house held that because all of the defendants had contributed to a risk of mesothelioma, then no distinction should be drown between the makings of a material risk of causing the disease and course of action that would materially increase the risk of the diseases. Because the Employers should only be liable for proportion of the damages then each employer should be liable to compensate its employee un full, even though the employee may have inhaled more asbestos fibres while working for another employee. As a result the Court held that the precise employer responsible could not be identified and so the claim should be rejected. It is impossible to say with certainty how the disease begins, but it is possible to identify that prolonged exposure worsens the risk. It seems then that The Court of Appeal applied Wilsher v Essex AHA [1986] inappropriately where McGhee v National Coal Board might have been more fairly applied in the circumstance. The House of Lords has in any case subsequently reversed The Court of Appeal decision. In Holtby v Brigham & Cowan (Hull) Ltd [2003], here the claimant had been exposed to asbestos dust for more then 40 years while working for different employers. When he contracted asbestosis he sued the defendants, for whom he had only worked for half of that time. The trial judge reduced damages by 25 per cent. The claimant appealed and tried to argue for application of the principle in McGhee, that once having established a material contribution by the defendants he was entitled to full damages. The Court of Appeal rejected his argument and upheld the trial judge’s award, even though 50 per cent deduction would have seemed more accurate. McGhee was distinguished. A majority of the House of Lords in Gregg v Scott [2005], reaffirmed the general approaches in Hotson’s case should be followed and declined to depart radically from its principles. In Wilsher v Essex AHA [1986] the House of Lords identified that the excess oxygen was just one of six possible causes of the condition and therefore it could not be said to fall squarely within the risk created by the defendants. The court would not impose liability on the defendant in this circumstance although this seems very unfair. The main purpose of the rules of causation is to exclude those thinks that are not the cause of the damage. If the same damage would have been suffered even if the there had been no breach of duty of care, then he claimant loses. The breach of duty of duty may initiate a whole chain of further events-but some of these will be treated as to ‘remote’ from the original negligence for it to be appropriate to hold the defendant answerable for those distant outcomes. The test of remoteness of damage in the tort of negligence was said to be whether the damage the direct consequence of the breach of duty. The defendant was not liable, if it was merely indirect, which ‘broke the chain of causation’. This test was particularly associated with the decision of the Court of Appeal in Re Polemis [1921]. In The Wagon Mound [1961], The Privy Council held that defendant would be liable only if it was the foreseeable consequence. From the above discussion, a number of points can be made, which will be consider that Betty get compensation or not. †¢ The judges in the House of Lords in Fairchild accepted that the sufferers of mesothelioma, while inevitably deserving of compensation, are unable to satisfy the normal tests for causation because they will invariably be unable to point to a single party who is responsible. †¢ The Court was prepared to accept the possibility of a claim for three connected reasons: Claimants in such actions were unable to satisfy for causation only because of the current state of medical knowledge on the disease, although there could be no doubt that exposure to the asbestos fibres in whatever volume was at the root of the disease. Defendant has to prove that their negligence could not be the actual cause rather then the claimants prove the precise cause. The employer’s duty of care would be meaningless, as they could almost never be made liable. †¢ The majority of the judges were therefore prepared to accept an exceptional principle of McGhee. †¢ The Court was not prepared to extend principle of McGhee to factual circumstance such as those in Wilsher. †¢ The House of Lords appear to have engaged in a policy decision in order to ensure that there is compensation for asbestos related diseases contracted in the course of employment. So there is a limited chance to get compensation according to applying Fairchild and McGhee. Then three employers will be liable and bear compensation fully. But if Court apply Hotson v East Berkshire AHA Betty or Harry does not get compensation. Bibliography: 1) Markesinis and Deakin, Tort Law, 5th Edition (2003), Clarendon Press-Oxford 2) John Murphy, Street on Torts, 11th Edition (2003), LexisNexistm UK, 3) Chris Turner Unlocking Torts, 1st Edition (2004), Hodder & Stoughton 4) I. M Yeats & P. Giliker, Law of Tort, (2006), University of London