Tort XXXV - Remoteness IV
In
McGhee v National Coal Board (1972) the plaintiff worked in the defendants’
brick factory and though in the initial stages he was exposed to only small
quantities of dust he was later asked to work in brick kilns and was exposed to
hot abrasive dust.
The
defendants did not have adequate washing facilities available and the plaintiff
had to cycle home, after at least eight hours of toiling in the brick kilns, to
have a wash. As a result, the plaintiff contracted dermatitis and he sued.
The
court held that the defendants had breached their duty by failing to provide
adequate washing and cleaning facilities and it does not matter that there may
have been other factors that could have or may have impacted the onset of the
illness. The prime factor or the major factor that had caused the plaintiff’s
illness was the defendants negligence and therefore the defendants were liable.
In
Holtby v Brigham & Cowan (2000) the plaintiff worked as a marine fitter and
during the course of his employment he was exposed to asbestos dust and as a
result suffered from asbestosis – a chronic long-term lung condition. The
plaintiff brought an action against the defendants, his employers at the time.
The court held that while the defendants were liable, they were liable only for
the period that the plaintiff was working for the defendants.
During
the trial, it had come to light that the plaintiff had also been working for
other employers and the nature of his work or employment brought him in contact
with asbestos dust and this too could have contributed to his illness. As a
result, the damages that were awarded were reduced accordingly.
Would
the plaintiff have been better off if he had brought an action again all his
previous employers because he was working in similar conditions all the time,
along the lines of Fitzgerald v Lane (1987), and allowed the courts the
opportunity to apportion liability accordingly?
In
Heil v Rankin and another (2000) we look at other causes that exacerbate an
illness or a previous injury that is still operating and the prior operating
illness or injury aggravates a new illness or injury. The plaintiff was a dog
handler with the police force and in 1987 he was exposed to a serious crime
which left him deeply scarred. In 1993, he was involved in another incident
with the defendant which was minor compared to the incident that he was
involved in, in 1987, but the injury he sustained as a result of the new
incident was aggravated or exacerbated by the previous illness and as a result
he was no longer able to continue with the police force.
The
plaintiff sued and the court had to decide the extent of the defendant’s
liability. Did the thin skull rule i.e. the rule that you take your victim as
you find them, apply in this instance? - in which case the defendant would be
liable for the full extent of the injury or illness or was it a matter of
apportioning liability to the extent of the defendant’s wrongdoing?
The
court decided that it was the latter, after taking into account the fact that
the plaintiff would also be conferred retirement benefits and other benefits
that he was entitled to as a result of retiring with full honors from the
police force. In this instance, it was not a matter of under compensating the
plaintiff but rather a matter of over compensating him.
In
Alcoa Minerals v Broderick (2000) we once again have an opportunity to examine
the liability owed by companies and factories with regards and reference to
environmental damage. The defendants were owners of a smelting factory and
since 1972 the factory had released pollutants into the air caused by smelting
works done in their factory. The pollutants were corrosive and caused damaged
to the zinc panels on the roof of the plaintiff’s house.
The
court in line with the decision in Margereson & Hancock v JW Roberts Ltd
(1996) held that the plaintiff was entitled to claim. However, by the time the
matter had come to trial the cost of repairs, propelled by inflation, had
quadrupled. The question before the courts was whether the damages that were accorded
should correspond with the date of the breach or should the damages correspond
with the costs at the time the matter came to trial?
The
court held that the general rule was that damages were normally accorded in
relation to the date of the breach but this rule was subject to exceptions
especially when it would lead to injustice and would result in a decision that
was inequitable. Taking into account the defendant’s impecuniosity, the court
awarded damages in accordance with the costs at the time the matter came to
trial and not according to when the breach occurred.
Copyright
© 2019 by Dyarne Ward
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