'English Tort Law Essay\r'

'Answer:\r\nThis question raises well-nigh issues from slackness. In order to answer this question it is demand to k outright about default, avocation of care, and burst of duty, source and remo cristaless. But here the most important move are employers’ obligation, multiple obligation or causation, and person-to-person injury. Here the principal(prenominal) findings attemptament be Betty buster is an employee of these companies or non, she can sue for asbestos- associate mesothelioma as a one-third person.\r\nHere the hithertots are evoke associate engagemented as a carpenter for thirty-five years, organism employed by Right Ltd for ten years, consequently by Ruff Ltd for a however ten years and and so 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 in spatterry.\r\nIn any(prenominal) of these jobs he was required to work with asbestos sheeting, which he usually had to cut to size both with hand saws or powered saws. Betty Bloke, chivy’s wife, always washed his work overalls every Saturday. She would handshaking them outside the back door to remove the disperse before she put them in the washing machine. Betty has now been diagnosed with asbestos-related mesothelioma and is very ill. All threesome companies deny liability for her illness.\r\nBefore attempt to discuss the potential liability of all three companies to Betty in negligence it is needful 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.\r\nIn 1934 Lord Wright utter in Lochgelly Iron and scorch Co v McMullan [1934],\r\n‘In strict legal analysis, negligence meaning more than heedless or careless conduct, whether in omission or commission: it properly connotes the hard concept of duty, breach and d amage on that pointby suffered by the person to whom the duty was owing.’\r\nIn Murphy v Brentwood District Council [1990], the House of Lords held that the council was not presumable on the basis that the council could not owe a greater duty of care to the claimant than the builder. In doing so the homage also overruled Anns and the two-part bear witness, preferring instead a new three-part tryout suggested by Lords Keith, Oliver and Bridge in Caparo v Dickman [1990]. In order to inflict liability on the employers, Betty has to naturalized foresight, propinquity and fairness and it is the authorized evidence.\r\nIn Caparo industries v Dickman [1990], the shareholders in a club bought more shares and thus made a successful takeover drama for the company after studying the audited accounts prepared by the defendants. They by and by regretted the move and sued the auditors claiming that they had relied on accounts, which had shown a sizable surplus rather than the deficit that was in fact the depicted object.\r\nThe House of Lords held that the auditors owed no duty of care since company accounts are not prepared for the purposes of people winning over a company and cannot then be relied on by them for much(prenominal) purposes. Harry was an employee except the asbestos did not affect him. His wife suffered mesothelioma, so the authorized trial has to show three things if thither is to be a duty of care:\r\n1) It was reasonably foreseeable that a person in the claimant’s plant would be injured. Here for Betty Bloke, the risk was reasonably foreseeable as an employee but as a third political party it is difficult to show.\r\n2) There was sufficient proximity between the parties. Employers owed some duties to employees.\r\n3) It is fair, just and probable to impose liability.\r\nAfter the Caparo test Betty whitethorn be match three criteria. Then it deliver the goods 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 illness 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 faux pas truths. Bolton v. Stone test may be applicable to prove breach of duty. According to this test employers are not likely.\r\nAs a general rule English law does not impose a duty, reason out that the taint of X and not that of D. But specially a duty may arise. Employers are vicariously conjectural for the negligent acts or omissions. Employers are also probable under the common law principle represented in the Latin phrase, â€Å"qui facit per alium facit per se”. So match to Home Office v Dorset Yacht [1970], and Lewis case it will be consider here.\r\nIn 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 mak e a countersink early diagnosis so that he later developed avuncular necrosis, a deformity of the plane without the failure to diagnosis promptly.\r\nOn this basis the test label, and later the tap of spell, awarded him 25 per centime of the modify they would consider usurp for the loss of a candidate of recovery. The struggle judge commented that the hospital had translated the probability of the hindrance developing into a sure thing by negligence in their failure to diagnosis. However, the House of Lords allowed the Health dresser’s appeal and would not consider the trim back chance of recovery an issue of causation.\r\nIn Blythe v Birmingham Waterworks [1856], the sanctioned 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 model the conduct of human affairs, would do, or doing something w hich a reasonable and prudent man would not do.\r\nBetty could get payment by applying McGhee.\r\nIn McGhee v National char Board [1973], here the claimant worked in a brick kiln where he was undecided to brick dust, a practicable cause of the dermatitis that he in fact assure. The Board was not liable for video during working hours.\r\nThey were held liable for materially increase 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 helplessness to provide basic health and safety the agitate 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 employ so bolt in Hotson v East Berkshire AHA [1987].\r\nTo identify the employer’s liabi lity suffered mesothelioma after exposure to asbestos dust of Betty Fairchild v Glenhaven Funeral Services Ltd and separates is the most significant test.\r\nIn 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 set 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 certainly contracted.\r\nThe act of Appeal accepted that medical evidence could not identify a ace cause of the disease, which faculty be caused by contact with even single asbestos fibre, or may involve cumulative exposure to fibres. The speak to of Appeal in fact rejected the claims. The HLs, accepted the expert evidence that it is scientifically ambivalent whether inhaling a single fibre or brainchild 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 delay employees from inhaling the dust. Besides this the House felt that any other cause of developing the diseases could be ignored in the case.\r\nOn the basis that the claimants suffered the very injuries that the defendants supposed to support 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 f ibres date working for another(prenominal) employee.\r\nAs a result the Court held that the tiny 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 die 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 conclusiveness.\r\nIn 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, t hat once having established a material character 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.\r\nA absolute volume 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.\r\nIn Wilsher v Essex AHA [1986] the House of Lords identified that the additional oxygen was just one of six possible causes of the condition and therefore it could not be verbalize 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.\r\nThe 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 t he 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.\r\nThe test of remoteness of damage in the tort of negligence was said to be whether the damage the direct issuance 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].\r\nIn The Wagon Mound [1961], The Privy Council held that defendant would be liable only if it was the foreseeable consequence.\r\nFrom the above discussion, a number of points can be made, which will be consider that Betty get wages or not.\r\n• The decide in the House of Lords in Fairchild accepted that the sufferers of mesothelioma, while inevitably deserving of compensation, are unable to avenge the normal tests for causation because they will invariably be unable to point to a single party who is responsible.\r\n• The Court was prepared to accept the possibility of a claim for three connected reasons:\r\nClaimants 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.\r\nsuspect has to prove that their negligence could not be the actual cause rather then the claimants prove the specific cause.\r\nThe employer’s duty of care would be meaningless, as they could almost never be made liable.\r\n• The majority of the judges were therefore prepared to accept an exceptional principle of McGhee.\r\n• The Court was not prepared to extend principle of McGhee to factual circumstance such as those in Wilsher.\r\n• The House of Lords appear to have employed in a policy decision in order to ensure that there is compensation for asbestos related diseases contracted in the course of employment.\r\nSo 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.\r\nBibliography:\r\n1) Markesinis and Deakin, Tort Law, 5th var. (2003), Clarendon Press-Oxford\r\n2) John Murphy, Street on Torts, 11th chance variable (2003), LexisNexistm UK,\r\n3) Chris Turner Unlocking Torts, 1st Edition (2004), Hodder & Stoughton\r\n4) I. M Yeats & P. Giliker, Law of Tort, (2006), University of London\r\n'