Tort Law
1)Andrew,BrianandCyrilallworkedinDavidssteelprocessingfactory,and
following exposure to certain toxins in the air they all developed
a debilitating lung disease called toxidustocis and want to sue
David in respect of the harms caused
bythisexposure.Davidseeksyouradviceastohispotentialliability.Heclaims
that in all cases the consequences of his negligence have been
obliterated by the following events:
a)Upondevelopingthedisease,AndrewresignedfromDavidsfactoryand
foundemploymentasasecurityguardinashoppingcentrebutwasshotin the
chest by robbers whilst on duty. These injuries mean that Andrew
can no longer work at all. (The robbers, incidentally, were never
identified and cannot be sued). b)Since leaving the employ of
David, Brian has developed emphysema (a highly debilitating lung
disease). Whilst the symptoms of Brians emphysema and his
toxidustocisareverysimilar,Brainisinmuchmorepainanddiscomfort(and
hasamuchshorterlifeexpectancy)thanbeforetheonsetofthissecond
illness. Medical evidence states that Brians emphysema cannot be
attributed to the exposure of the toxins in Davids factory (it is
more likely to have been a result of Brians life-long smoking
habit).
c)Cyrilsphysician,DrEvil,(wrongly)decidedthatalungtransplantwouldcure
the toxidustocis. The operation was a disaster and although Cyril
would never
haverecoveredfromthetoxidustocis,theconsequencesofthefailed
operationhavemadehissituationradicallyworse.DavidwantstoknowifDr
Evil should be liable, and if so, to what extent. 2)David also
denies liability on the basis that in his factory toxic dust is
produced by
severaldifferentmachinesinequalmeasure.Davidadmitsthathadheproperly
maintainedthedustextractorononeofhismachinesthatlessdustwouldhave
enteredtheair,butpointsoutthatinrespectofhisothermachinestherewas
nothingthathe,oranyotheremployer,coulddotopreventexposureitwas
simply an inevitable and lawful consequence of the nature of the
factory.
3)Davidknowsthattheclaimantshadworkedforanothersteelprocessingfactory
(owned by Frink) for a number of years before they worked for him
and says that
FrinkshouldbepartlyresponsibleforAndrew,BrianandCyrilsillnesses,
becauseFrinksubjectedalloftheclaimantstothesamelevelandtypeoftoxic
dust.Davidhasheardthatcourtshavethepowertoattributeliabilitytoone
defendant in these cases and seeks your reassurance that the
so-called Fairchild exception or s.3 of the Compensation Act 2006
cannot be used against him. Causation is an act (or omission) by
the defendant in breach of a duty he owed the claimant
andwhichcausesharmtoaclaimantsinterestprotectedbylaw1;thisharmmustnotbe
too remote. Causation is a matter for the jury to decide. Causation
is both a question of facts
andlaw.Infactualcausation,thedefendantsactisnecessarytotheappearanceofthe
damage:onthebalanceofprobabilities(51%),thenegligentactmusthavecausedthe
damagebut for it, the event would not have occurred. For legal
causation, the claimant
mustshowthatthedefendantsactmadeasignificantandnottrivialcontributiontothe
result2,thatthedamagewasreasonablyforeseeable.Anewactmaybreakthechainof
causation,whereanotherunforeseeableactoccursandifthesecondcauseisso
overwhelmingastomaketheoriginal[act]merelypartofthehistory3.Ifthechainof
causationisbroken,thedefendantisrelievedofhisresponsibility:thatiswhatDavidis
claiming. 1) a)
InAndrewscase,theillnessandtheshootingaretwoindependenteventscausingasimilar
damagetoAndrewschest.Wheredoesthefirstdefendantsresponsibilityend?Doesthe
secondinjurybreakthechainofcausationbyobliteratingthefirstdefendants
responsibility? The case to apply here is Baker v Willoughby
[1970]:4 Mr Baker suffered a leg injury when he
washitbythedefendantscar,ultimatelylosinghisjobbecauseoftheinjury.Beforethe
case was heard, Mr Baker was shot in the leg during a robbery at
his new place of work; his leg had to be amputated. The defendant
argued that his liability ended at the moment of the shooting
because the first injury was obliterated. The House of Lords upheld
Mr Bakers
appeal,rejectingthedefendantsargumentonthebasisthatitwouldproduceamanifest
1 Dictionary: causation 2 idem 3 Lord Parker CJ in R v Smith [1959]
2 QB 35 at 42-43. 4 Baker v Willoughby [1970] AC 467
injustice,inpartbecausetherobberscouldnotbesuedandtheclaimantwouldclearlybe
under-compensated. As Lord Reid put it, [Mr Bakers] loss is not in
having a stiff leg; it is in his inability to lead a full lifeand
his ability to earn as much as he used to earn or could
haveearnediftherehadbeennoaccident.Inthiscasethesecondinjurydidnotdiminish
any of these. So why should it be regarded as having obliterated or
superseded them?5
Here,Andrewhasdevelopedadiseasethathindershisabilitytofullylive,andledtohis
resignationfromDavidsfactory,asitwasthecaseforMrBaker.Inhisnewcourseof
employment and before the trial, he was shot in the chest by
robbers, effectively preventing
himfromworkingatallanymore;itiscomparabletoMrBakerslegbeingamputated,
deprivinghimofopportunitiesinlife.Sincetherobberswerenotidentifiedandcannotbe
sued at all, it would not be fair to Andrew to end Davids liability
at the time of the shooting, considering the second injury did not
diminish Andrews loss. The chain of causation does not seem to be
broken, and David will remain liable for the full extent of the
plaintiffs damages. b)
InBrianscaseissimilartoAndrewscase,butthesecondeventisofnaturalcauses.Does
Davids liability end with Brian developing emphysema or with Brians
life? Does the onset of the second illness break the chain of
causation? The case to be applied is Jobling v Associated Dairies
Ltd [1982]6: Mr Jobling suffered a back injury at work, which
brought about a 50 per cent reduction of his earning capacity.
Before
thetrial,hedevelopedadiseaseofthespine,whichlefthimtotallyunabletowork.
AccordingtoBaker7,thedefendantshouldbeliableforMrJoblingsreducedearning
capacities for life. However, the court held that the defendant was
only liable until the onset of the spine disease, as the second
illness was independent from the first injury and as even 5 Lord
Reid, Baker v Willoughby [1970] AC 467 Page 492 6 Jobling v
Associated Dairies Ltd [1982] AC 794 7 Baker v Willoughby [1970] AC
467 if the plaintiff had never sustained the tortious injury, his
earnings would now be reduced or
extinguished8.HoldingthedefendantliableforMrJoblingslifewouldbeunjustashe
would clearly be over-compensated.
Here,BriandevelopedalungdiseasefromworkinginDavidsfactory,inducinghis
resignation from his employment. Before the trial, he developed an
illness which has similar
symptomsbutinflictsmuchmorepainanddiscomfortonBrian,reducinghislife
expectancy. As Mr Joblings spine disease was not related to his
back injury and he would have suffered it anyway, Brians new lung
disease is a separate issue from his work. Medical evidence states
that not only was the new illness not provoked by Brian working at
Davids factory and being exposed to the toxins, it is likely to
have been a result of Brians own life-long smoking habit.
ThechainofcausationhasbeenbrokenbyBriandevelopinganewunrelateddisease,and
holdingDavidliableforBrianslifewouldclearlybeunjust.DavidisliableforBrians
reduced earning capacity up to the time of the onset of the new
disease. c) In Cyrils case, following the injury at Davids factory
was a failed operation which left him
inaworsesituationthanbefore.HavetheconsequencesofDavidsnegligencebeen
obliterated by Dr Evils failed operation?
TherelevantcaseisRahmanvArearoseandAnother[2001]9:MrRahmanwasassaulted
while working at the first defendants restaurant; he was severely
injured in his right eye, but would probably recover given adequate
treatment and time. The claimant went to the second
defendantshospitaltoreceiveanoperationwhichthroughnegligenceblindedhiminhis
righteye.Inaddition,theclaimantdevelopedpost-traumaticstressdisorder,aspecific
phobiaofAfro-Caribbeanpeoplewithparanoidelaborationandanenduringpersonality
8 Lord Bridge, Jobling v Associated Dairies Ltd [1982] AC 794 Page
820 9 Rahman v Arearose and Another [2001] QB 351
change.Thefirstdefendantwasheldresponsibleforthephysicalinjuriesandthe
psychologicaltrauma,andthehospitalwouldcompensatetherest,consideringthefailed
operation did not obliterate the consequences of the first.
Applying Baker v Willoughby, the
courtfoundthatthesecondinjurydoesnotsupersedethefirstone,soArearoseremained
liable for their breach of duty towards the claimant. However the
hospital was held liable for any increase in harm to Mr Rahman and
would compensate the rest. The damages would be apportioned between
the defendants, assessing their responsibility by reference to the
extent to which their negligence had contributed to the claimant's
total loss.
Here,Cyrilwasinjuredwhileatworkthensufferedadisastrousoperationwhichmadehis
situationfarworsethanbefore.Hesufferedpainandpossiblypsychologicaltraumaand
personality change, both from Davids negligence and form the
hospitals. David will be held responsible for Cyrils injury, as
will Dr Evil. The damages due to Cyril by each defendant will be
decided by the court in respect of that loss and damage for which
he
shouldjustlybeheldresponsible(inRahman10itwasconcludedtobeconcludedthatin
termsofcausativepotencytheseconddefendants'negligencewasthreetimesmore
significantthanthefirsts).However,sincetheseconddefendantsshouldnotbeheld
responsiblefordamagewhichhadalreadybeenwhollyinflictedbythefirstdefendant,
DavidwillbeheldliableinfullforthelossofearningsfortheperiodbetweenCyril
developing the illness and the failed operation. 2)
Daviddeniesliabilityonthebasisthatalthoughhisemployeesillnesswastheconsequence
ofbeingexposedtotoxicdust,therewasnothingheoranyoneelsecouldhavedoneto
preventexposure,eventhoughoneofthemachineswasnotproperlymaintainedand
inducedagreaterquantityofdusttoentertheair.Thereisuncertaintyastowhetherthe
10 Rahman v Arearose and Another [2001] QB 351
defendantsnegligencehascausedthedamage.IstherefactualcausationbetweenDavids
possible breach of duty and his ex-employees
illness?ThecasethatappliesisBonningtonCastingsLtdvWardlaw[1956]11:theclaimanthad
developed pneumoconiosis, a lung illness because he had inhaled
dust coming two different sources, one of which involved no breach
of duty by the employer while the other did. The issue was whether,
as there was no evidence to show the proportions of dust emanating
from the various sources of dust, the claimant could prove that on
the balance of probabilities the
guiltydusthadcausedhisdisease.Thecourtheldthatasthelungdiseasetheclaimant
contractedwasadiseasewhichisaggravatedbytheinhalationofincreasedquantitiesof
dust and it had been shown that the proportion of guilty dust was
not negligible, the guilty dust had contributed materially to the
claimants contracting the illness. The defendant was found liable.
Here there also is a mix of guilty and innocent dust, as no one can
prevent some of it to enter
theairbutDaviddidnotproperlymaintainoneofthemachines.Toxidustocis,thelung
disease Davids employees developed, seems similar to pneumoconiosis
and probably is of gradual incidence: if indeed it is a cumulative
disease, the but for test cannot apply as it is impossible to
determine on the balance of possibilities which dust provoked the
onset of the illness.David will be found liable as long as the
claimants can show that the proportion of dust from the improperly
maintained machine in the factory was not negligible and hence
contributed materially to the claimants developing the illness.
3)Davids employees have all been employed before in another factory
which exposed them to
thesamelevelandtypeoftoxicdust.IsonlyDavidliable,oristhefirstemployeralso
11 Bonnington Castings Ltd v Wardlaw [1956] AC 613
liable?Ifbothare,aretheyliableseverally(thepartiesareonlyliablefortheirrespective
obligations) or both severally and jointly (each claimant is liable
to the full amount)? In Fairchild v Glenhaven Funeral Services
[2002]12, different claimants had all been exposed to asbestos by
multiple employers and had all contracted mesothelioma. This
illness is not a
resultofcumulativeexposure,andassuchitwasimpossibletodeterminewhichemployer
wasresponsible.Inorderfortheclaimantstobejustlycompensated,thecourtextendeda
test they had already established; as Lord Rodger puts it, by
proving that the defendants
individuallymateriallyincreasedtheriskthatthemenwoulddevelopmesotheliomathe
claimants are taken in law to have proved that the defendants
materially contributed to their illness13. The court created an
exception by which all former employers who had exposed
theemployeestoasbestoswhichhadresultedinmesotheliomawouldbeheldjointlyand
severallyliable.Sincethenthisexceptionhasbeenintroducedins.3oftheCompensation
Act 2006.
Here,thethreeemployeescontractedtoxidustocis,anillnessthatseemstobelinkedtothe
amount of dust to which the men have been exposed, just as
pneumoconiosis or asbestosis,
andasopposedtomesotheliomawhichrequiressingleexposure.S.3oftheCompensation
Act 2006 explicitly refers to mesothelioma and assuch does not
apply to Davids case. The Fairchild exception has only been used in
connection with mesothelioma cases, and should not apply to David
either. Toxidustocis seems to be a cumulative disease. A case to be
referred to is Holtby v Brigham & Cowan (Hull) Ltd [2000]14,
where the claimant, who had developed a cumulative disease,
hadworkedhalfofthetimeforthedefendantsandtheotherhalfforanotheremployer.It
washeldthatthedefendantshouldbeliableonlyforthedamagetheyhadcaused.In
12 Fairchild v Glenhaven Funeral Services [2002] 3 All ER 305 13
Lord Rodger, Fairchild v Glenhaven Funeral Services [2002] 3 All ER
305 at 168 14 Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All
ER 421.
diseaseswheretheconditionisacumulativeoneandtheextentofthedefendants
contribution is known they will only be liable to that extent.15
Davidshouldonlybeliabletotheextentofhiscontributiontotheclaimantshaving
developed the illness, which depends on the time they have worked
at his factory compared to the time whey worked at Frinks, who will
be responsible for the rest of the damage. 15 Cooke p179
