English Tort Law Essay

AnswerThis question raises some issues from scorn. In order to reception this question it is necessary to know ab push through negligence, avocation of c atomic number 18, and geological fault of duty, former and remoteness. solely here the most important parts are employers obligation, sixfold liability or originator, and personal injury. hither the main findings will be Betty Bloke is an employee of these companies or non, she can sue for asbestos-related mesothelioma as a troika person.Here the facts are raise Bloke worked as a work for thirty-five years, being employed by Right Ltd for ten years, wherefore by Ruff Ltd for a further ten years and consequently by deceptive 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 every last(predicate) of these jobs he was required to work with asbestos sheeting, which he usually had to cut to size eithe r with hand saws or powered saws. Betty Bloke, hassles wife, always washed his work overalls every Saturday. She would brace them outside the back door to remove the dust before she regularise them in the washing machine. Betty has now been diagnosed with asbestos-related mesothelioma and is very ill. All one-third companies recant 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 among Betty and all three companies. Here it is non clear t chapeau Betty was an employee of these companies or non, though every Saturday remove the dust.In 1934 Lord Wright said in Lochgelly straighten out and sear Co v McMullan 1934,In strict legal analysis, negligence means more than heedless or businessless gestate, whether in remissness or commission it properly connotes the complex concept of duty, breach and handicap in that locationby suffered by the person to whom the d uty was owing.In Murphy v Brentwood District Council 1990, the hall of Lords held that the council was not apt 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 authentic test.In Caparo industries v Dickman 1990, the share clutchesers in a company bought more shares and be name made a successful takeover bid for the company after studying the audited accounts prompt by the defendants. They later regretted the move and sued the auditors claiming that they had relied on accounts, which had shown a sizeable overabundance rather than the deficit that was in fact the content.The support of Lords held that the auditors owed no duty of care since company accounts are not mendd for the goals of people victorious over a company and cannot then be relied on by them for much(prenominal) 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 in that location is to be a duty of care1) It was reasonably foreseeable that a person in the claimants position would be injured. Here for Betty Bloke, the insecurity was reasonably foreseeable as an employee but as a third party it is hard-fought to show.2) There was sufficient proximity among the parties. Employers owed some duties to employees.3) It is fair, just and well-founded 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 infirmity though it was obvious. If Harry sues on be half o f Betty then it will justify imposing liability to the employers. Here it will be discussed considering the relevant case practice of 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, ratiocination 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 on a lower floor the common law principle represented in the Latin phrase, 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 tocopherol 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 ahead of time diagnosis so that he later developed avuncular necrosis, a deformity of the eve without the failure to diagnosis promptly.On this basis the examination judge, and later the motor inn of Appeal, awarded him 25 per cent of the changes they would consider take into account for the loss of a chance of recovery. The trial judge commented that the hospital had translated the hazard of the disability developing into a certainty by negligence in their failure to diagnosis. However, the House of Lords allowed the Health Authoritys appeal and would not consider the slim chance of recovery an issue of causation.In Blythe v Birmingham Waterworks 1856, the underlying Rule is that the defendant must conform to the bar 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 heart-to-heart to brick dust, a feasible cause of the dermatitis that he in fact contracted. The Board was not liable for motion picture during operative hours.They were held liable for hooeyly increasing the risk of the claimant contracting the disease because of their failure to provide washing facilities, tear down 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 lawsuit 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 employers liability suffered mesothelioma after exposure to asbestos dust of Betty Fairchild v Glenhaven Funeral go Ltd and others is the most significant test.In the case of Fairchild v Glenhaven Funeral Services Lt d 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 types was the cause of the disease. Nevertheless, it was impossible to identify in which particular employment the disease was actually contracted.The motor hotel of Appeal real 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 additive exposure to fibres. The royal 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 snub 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 challenge that would materially increase the risk of the diseases. Because the Employers should only be liable for symmetricalness 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(prenominal) 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 study with certainty how t he 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 jolly applied in the circumstance. The House of Lords has in any case later 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 attempt 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 judges 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 Hotsons 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 forthright 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 hardened as to remote from the original negligence for it to be appropriate to hold the defendant answerable for those dista nt outcomes.The test of remoteness of damage in the tort of negligence was said to be whether the damage the direct return 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 judge in the House of Lords in Fairchild accepted that the sufferers of mesothelioma, while inevitably deserve of compensation, are unable to satisfy the normal tests for causation because they will incessantly be unable to point to a single party who is responsible. The Court was prepared to accept the possibility of a claim for three committed reasonsClaimants in such actions were unable to satisfy for causat ion 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 groundwork 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 employers 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 Berks hire AHA Betty or Harry does not get compensation.Bibliography1) Markesinis and Deakin, Tort rectitude, 5th Edition (2003), Clarendon Press-Oxford2) John Murphy, Street on Torts, 11th Edition (2003), LexisNexistm UK,3) Chris Turner Unlocking Torts, 1st Edition (2004), Hodder & Stoughton4) I. M Yeats & P. Giliker, Law of Tort, (2006), University of London