Chapter 11 The Tort of Negligence - OED-update - Oxford University ...

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372 Part 3 Tort Law Decision: The claimant had to prove, on the balance of probabilities, that the defendant’s negligence was the cause of, or materially contributed to, the RLF. The claimant was unable to do this and, therefore, failed in their claim. However, where the claimant can prove that his injury was caused by a particular factor, he may be successful in his claim against a defendant employer, even though he is unable to prove which actual employer exposed him to the factor that caused the harm. In the following case, mesothelioma was contracted from a single exposure from working with asbestos dust. The claimants had been exposed to asbestos dust in a number of different jobs and could not prove which employer had subjected them to the exposure that caused mesothelioma. Fairchild v Glenhaven Funeral Services Ltd (2001) Facts: The claimants had been negligently exposed to asbestos during the course of employment with more than one employer, and subsequently contracted mesothelioma. Unlike other asbestos-induced illnesses, mesothelioma may be caused by a single fibre, and once contracted, will not be exacerbated by further exposure. This made it very difficult for the claimants to establish, on the balance of probabilities, that any one of their defendant employers had actually caused or materially contributed to the mesothelioma. All that the claimants could prove was that each of their employers had negligently exposed them to the risk of contracting mesothelioma. Decision: The House of Lords stated that common sense and justice demanded a relaxation of the traditional causation rules, and that the exposure of the claimants to the risk of mesothelioma by the defendants should be treated as actually having made a material contribution to their contracting the disease. Therefore, all of their negligent employers were liable. The claimants could sue any one of them. (However, any employer sued could then seek a contribution from other employers that had also negligently exposed the claimants to asbestos dust.) The House of Lords also approved their earlier decision in Wilsher, which means that claimants may encounter considerable difficulties in proving loss or damages as a result of a breach of a duty of care where they are suffering from a disease or condition which may have been brought about by any one of a number of causes. Remoteness of damage The damage suffered by the claimant must not be too remote, which means that it must be reasonably foreseeable. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (1961) Chapter 11 The Tort of Negligence 373 Facts: The defendants spilt oil from their ship, the Wagon Mound, in Sydney Harbour. The oil spread to a wharf, where some welding was going on. The welding stopped until the defendants found that it would not ignite in the water. Three days later, a bit of cotton waste was floating in the oil and it ignited from a spark from the welding. The claimant’s wharf was destroyed. Decision: Although the fire was as a direct result of the oil spillage, it was too remote, as no one knew oil could ignite in that way, i.e. it was not reasonably foreseeable. The precise nature of the injury suffered need not be foreseeable, if the injury was of a kind that was foreseeable, even if the damage is more severe than anticipated. Hughes v Lord Advocate (1963) Facts: Post Office workers left a manhole open surrounded by paraffin lamps. Two boys climbed into the manhole. One of the boys took one of the paraffin lamps and dropped it into the manhole. The paraffin from the light vaporised and was ignited by the flame causing an explosion. Both boys suffered severe burns. Decision: The defendant was liable, as the type of harm was foreseeable even if the exact way in which it occurred was not. The explosion was not foreseeable but burning was foreseeable. Jolley v London Borough of Sutton (2000) Facts: A small boat was abandoned on grounds near a block of flats owned by the Council. The boat became derelict and rotten. The Council was aware that children played on the boat, which they knew was dangerous. The claimant, aged 14, and a friend were injured when they tried to jack up the boat to repair it. Decision: The Council was liable as some harm was foreseeable, even if the precise way the harm occurred could not be foreseen. The Eggshell Skull Principle The Wagon Mound case states that injury or damage must be reasonably foreseeable, but this does not displace the legal principle that the defendant must take his victim as he finds
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