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Fairchild v Glenhaven Funeral Services Ltd [2002].
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 WLR 89 HL Summary The three appeals dealt with by the House of Lords involved employees who had been exposed to asbestos at work and had subsequently contracted mesothelioma (a form of cancer caused by asbestos exposure). In each case the employee concerned had been exposed to asbestos by more than one employer during his working life. This made it difficult for the claimants to establish that any particular employer's negligence had caused the mesothelioma, because medical science does not know exactly how asbestos causes the disease. In particular, it is currently impossible to say whether the action of a single asbestos fibre, a few fibres, or the cumulative effect of many fibres causes the disease. It is possible to say, however, that the greater the quantity of fibres inhaled the greater the risk of developing the disease. Given this evidence the Court of Appeal concluded that the claimants were unable to prove on the balance of probabilities that the negligence of the particular employers who they had sued had caused the disease, or made a material contribution to it. The House of Lords, however, held that in the special circumstances of the case it was sufficient for the claimants to prove that the negligence of the particular employers had increased the risk of the employees contracting the disease.
"The triumph of negligence is a product of industrialisation; it is a disguised subsidy to business."
Common Law History. "The triumph of negligence is a product of industrialisation; it is a disguised subsidy to business." The following report is against the above motion. Before stating why, it is important to explain what the arguments for the motion are. Negligence is a refusal or an omission to take care when performing a task, thus putting people in jeopardy. Manchester, in Modern Legal History (1980) ch.12 (3), argues that there were various problems involved with negligence cases in the pre-industrial age. He points to problems encountered in the courts involving the two forms of action that dealt with negligence, (Trespass and Case). He says it was easy for a wrong doer to evade prosecution, for if an action was brought in trespass the defendant would simply state that their servant had committed the act, and that the proper action lay in Case. But the if action was brought in case the master could contest that they had committed the act, and that the proper action lay in trespass. However, this report will later show that the judiciary were not always ridged to these arguments, and a degree of flexibility was sometimes allowed which helped shape the laws application and restrict the use of these 'loopholes'. Another point to be noted is that there was also negligence cases brought under the writ of asumpsit, but this report will not digress into this area.
The Federal Government's "review" of the law of negligence - The aim of the review was to limit liability and the quantum of damages evolving from personal injury and death.
The Federal Government's "review" of the law of negligence was conducted in June 2002, by the Ipp committee, as a result of the recent insurance crisis. The aim of the review was to limit liability and the quantum of damages evolving from personal injury and death. This was the consequence of numerous factors including the September 11 terrorists attack on New York, a cyclical hardening of global insurance markets, and in Australia the collapse of HIH insurance. These factors lead to alarming increases in insurance premiums, and in some cases the inability to obtain coverage at all. The controversial recommendations proposed by the Ipp committee's review of negligence, which aim to limit liability, I believe, should be implemented. The recommendations of the Ipp committee differed in several aspects from the common law's position on the law of negligence which states that it is a basic human right to recover full compensation for negligence . As Justice Deane said in Jaensch v Coffey "the general underlying notion of liability in negligence is "a general public sediment of moral wrongdoing for which the offender must pay. Professor Alan Fels believed the recommendations proposed by the Ipp report favoured the campaign of the insurance industry and removes extensive common law rights of injured persons resulting in negligent defendants escaping liability. I am opposed to
Causation and Remoteness.
Causation and Remoteness Even in torts that are actionable per se, the claimant must prove that the tort caused the loss of which he complains if he wants to obtain substantial rather than nominal damages. Causation is concerned with the physical connection between the defendant's negligence and the claimant's damage. No matter how gross the defendant's negligence, he will not be liable if, as a question of fact, the conduct was not the cause of damage. The 'but for' test serves to exclude from consideration factors which have made no difference to the final outcome of events. Sometimes the conduct satisfies the 'but for' test, yet it is merely one of a number of events that could be rightly regarded as causing harm. Clearly, the facts must have a bearing on the decision (factual causation), but in the final analysis the court has to make a choice as to which events are to be regarded as having sufficient causative potency. This is not a scientific enquiry but a process of attributing responsibility, and this involves value judgments and policy decisions. It may be wrong however, to hold one responsible for all consequences of negligence. Sometimes, the outcome is freak or unusual and as such, it may not entirely be fair to put blame and accountability solely on the tortfeasor. Hence, the remoteness of damage that is the degree to which consequence of negligence and the
It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines. Discuss the above statement.
. "It is clear that psychiatric injury presents the law with the most profound problems and it has only kept it under control by drawing a series of arbitrary lines." Discuss the above statement. (40 Marks) To some extent, the above statement could be considered to be true. The law to psychiatric injury in tort is based on common law rulings and there is no set statutory provision to govern psychiatric matters. This is due to the fact that psychiatric illness is a matter involving a person's mind and mental emotions are always subject to change in changing situations. Courts have however made various attempts to categorise psychiatric illness in a 'series of arbitrary lines' to set a framework for various types of psychiatric illness claims. The courts will only grant remedy to what is 'medically recognised psychiatric illnesses such as, post traumatic stress disorder, organic depression and so on. Acute emotions such as grief and distress have no ground to a claim of psychiatric illness in law. Although the term, 'nervous shock' has been disapproved by the judiciary and replaced by 'psychiatric illness'1, psychiatric illness has to be caused from sudden shock of witnessing or participating in a event2 There are two types of claimants, primary victims and secondary victims.
A Critical Examination of the Concept of Breach of Duty of Care
NEGLIGENCE1 Negligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or delict (also known as a civil wrong). However, the concept is sometimes used in criminal law as well. Negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risk of harm. Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proved in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases. Negligence is a tort which is the breach of a duty of care imposed by common or statute law,
Tort - Nervous Shock
Tort answer (A) In the case of Dulieu v White1 Kennedy J. thought that the problem of exaggerated or fraudulent claims was not a good enough reason for simply denying the existence of a duty of care in respect of psychiatric harm as per Victorian Railway Commissioners v Coultas2 and wanted to tackle the problem head on. He introduced liability based upon what is known as the 'Kennedy test' - that real and immediate personal danger must be foreseeable. This test is still used today for what are known as 'primary victims' It is a person sufficiently close to the events to have their personal safety threatened or someone involved to the extent of being a direct participant and not just a mere bystander. An obvious example is a passenger in a car involved in a collision who walks away without a scratch. It was 24 years later that the principle in the Dulieu case was extended to cover family and close friends in Hambrook v Stokes.3 This was the first case in which a "secondary victim" was permitted to recover. Damages were awarded, although she was not within the foreseeable area of impact and the shock was suffered as a result of fear for her child's safety. The majority of the court of appeal believed it would be absurd not to compensate a mother who suffered psychiatric harm as a result of fearing for her children's safety when on similar facts another mother could succeed
Causation may be broken by a supervening act. To what degree does a supervening act have to be to break the chain of causation?
6. Causation & remoteness II Breaking the link Causation may be broken by a supervening act. To what degree does a supervening act have to be to break the chain of causation? The best example of this is: Scott v Shepherd [1733] 3 Wm Bl 892 The Defendant threw a lit squib into a market place. To avoid injury the stallholders threw the squib from stall to stall until eventually it exploded, blinding the Plaintiff. The Defendant was found to be liable, and the stallholders did not break the chain of causation. Stansbie v Troman [1948] 2 KB 48. A decorator left a house to go to the shops. During this time, having left the front door ajar, a thief walked in a burgled the house. He claimed that he could not be held liable for the act of thieves. The court disagreed. He was found liable for it, as the chain of causation had not been broken. However, if the thief had been caught he would not have been able to claim that it was the decorators' fault he burgled the place by leaving the door open. Causation is usually a case of common sense. However, it is a matter of law in complex situations. Each situation must be assessed individually; the players, the situation, the acts done, the omissions all contribute to an incident. However, common sense must be used when assessing it. Knightley v Johns [1982] 1 WLR 349 The 1st Defendant negligently caused a car accident
How, Pure Economic Loss is interpreted in both Contract Law and Tort Law.
How, Pure Economic Loss in interpreted in both Contract Law and Tort Law. This assessment will indicate and will analysis in the most suitable potential way how the work of Pure Economic Loss effects both the decisions in Contract Law and Tort Law. It will induct surveys on how Pure Economic loss should remain either on behalf of contract law or tort law, and argue whether this theory should remain the same. I shall now give a brief definition of what purpose pure economic loss holds in tort and contract law. In Tort law economic loss comes under as in the present context, is not a specific kind of damage which can differentiate forms of harm. It constitutes a normal pecuniary to damage, to be assessed according to the usual economic tests. Its peculiarity is rather the way of its occurrence, the circumstances of its happening are, the absence of physical harm. It has been suggested that fire, partly overlapping, categories of situations giving rise to the problem of economic loss be distinguished: . Negligent misstatement, such as the negligent preparation of a balance sheet, which causes financial loss to a third party investor. 2. An otherwise negligently perfumed service adversely affecting a third party, such as the case. In contract law, the normal approach to contract damages is to try to put the claimant in the position he would have been in if the had been
Tort Problem.
Tort Problem Introduction It is established law that recovery for pure economic loss is possible if it is caused by a careless statement. This was established in the case of Hedley Byrne & Co Ltd v Heller and Partners Ltd1, so that those in the business of giving skilled advice may be liable for any economic loss suffered from giving careless information. Limits on the circumstances in which a person is held to have a duty of care were laid out to prevent "floodgates" of claims. It is these qualifications which we must focus on to ascertain whether there are possible claims in negligence for both Stout and Nice. Staff and Stout Initially there must be a "special relationship" or proximity between the parties, using a "special skill" by the defendant. In this case, Staff gives specialist advice to Stout with regards to a house he is buying in his capacity as a professional surveyor. This would be regarded as fulfilling the requirement for proximity set out in Hedley Byrne, however, in Caparo Industries plc v Dickman2, further limits were placed on proximity to restrict the number of people eligible to claim. The defendant must know that the statement would be communicated to the claimant as an individual, which in this case is true for Staff and Stout, as Staff passes on the report to Stout himself. He must also know that the statement would be used in connection with a
