fairchild v glenhaven 2002

80. Hart Publishing, pp. An alternative ground of distinction is to be found in a passage in the dissenting judgment of Sir Nicolas Browne-Wilkinson V-C in the Court of Appeal, which was approved by the House. The Lord Ordinary (Kissen) rejected the common law case. Research has gone far enough for scientists to be able to see, at a microscopic level, what the possible mechanisms may be, but not far enough for them to determine which is the one that actually operates. 75. But some authorities suggest that in cases where the claimant can prove that a breach of duty materially increased the risk of the contraction of a particular disease and the disease occurred, the law should treat this as giving rise to the inference that the breach of duty was a cause of the disease rather than that the judge as the tribunal of fact should draw a factual inference. Secondly, part of the underlying rationale of the principle is that the defendant's wrongdoing has materially increased the risk that the claimant will suffer injury. In 1995 he developed symptoms of mesothelioma and he died on 24 April 1996 at the age of 63. While that is sufficient for the decision of the appeals, Mr Stewart urged that, if minded to apply some version of the principle in McGhee, the House should define its scope. In these circumstances, one might think, in dubio the law should favour the claimants. Since all the damage had been done in the kiln, a shower could not have obviated or lessened that damage (1973 SC(HL) 37, 48 per Lord Migdale). 119-139, December 2002 Posted: 29 Feb 2008 In McGhee, however, unlike the present appeals, the case was not complicated by the existence of additional or alternative wrongdoers. The House quickly applied this approach in two Scottish appeals that were heard one after the other: Quinn v Cameron & Roberton Ltd [1958] AC 9, 23 per Viscount Simonds, 34 per Lord Morton of Henryton, and Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613. In McGhee, on the other hand, it was possible that the pursuer's dermatitis had been prompted purely by his exposure to dust in the kiln and by his exertions there, for which the employers would not have been liable in delict. The reason must be sufficiently weighty to justify depriving the defendant of the protection this test normally and rightly affords him, and it must be plain and obvious that this is so. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. Mr Stewart QC, in an impressive argument on behalf of two of the defendants, advanced submissions which I summarise as follows: 93. C may then work for B, and again inhale quantities of asbestos dust which will have the effect of aggravating his asbestosis. 147. 63. Viscount Simonds' conclusion was clearly expressed (at pp 619-620): "For it appears to me that [the evidence] clearly established that dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. One which makes an employer in breach of his duty liable for the claimant's injury because he created a significant risk to his health, despite the fact that the physical cause of the injury may have been created by someone else? For that reason the Court of Appeal rejected their claims. Insistence on the normal standard of causation would work an injustice. The defendants have not disputed that they were each in breach of the respective duties which they owed to the husbands of Mrs Fox and Mrs Fairchild and to Mr Matthews. The complaints made in the action related not to the creation of dust in the dressing shop but to the defenders' failure to provide adequate ventilation to extract the dust. In its judgment the Court of Appeal stated, at [2002] 1 WLR 1052, 1080, in para 103: 116. He disclaimed the statutory case at the hearing on evidence. if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Fairchild v Glenhaven Funeral Services Ltd . 1, is a leading tort case decided by the House of Lords. The claimants thus have all the necessary elements for a successful claim except, it is argued, proof of causation. Although he did not refer to it, there was ample authority for the proposition in both English and Scots law. I now give my reasons for reaching that decision. It may be necessary in the future to consider whether the McGhee principle should be applied to other cases, but such decisions will have to be taken when such cases arise. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. It is therefore essential not just that the defendant's conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself. As Mr Stewart rightly observed, in the course of submissions that were both helpful and sensitive, this may change the way in which the law treats such cases. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. In Summers v Tice 199 P 2d 1 (1948) each of two defendants at or about the same time shot at a quail and in doing so fired towards the plaintiff who was struck by shot. The nature of the disease, the way in which it develops and the extent of medical knowledge in relation to it, and a description of the working conditions which caused the disease in these three cases are set out in the judgment of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt that account. Facts. It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. In summary ([2002] 1 WLR 1052, 1064, para 26) therefore. I think this was the view of Lambert JA in Haag v Marshall when he said at p 379, "it is permissible to infer, as a matter of legal, though not necessarily logical, inference, that the material increase in risk arising from the breach of duty constituted a material contributing cause of the loss". 156. In Wilsher v Essex Area Health Authority [1988] AC 1074 the House examined McGhee and came to the conclusion that the decision rested not on any legal principle but on nothing more than "a robust and pragmatic approach" to the facts of the case. Wilsher is an example. Here in the state of medical knowledge it is not possible for the claimants to prove whether the mesothelioma started from the effect of a single fibre or from the effect of multiple fibres. It marked the establishment of the eggshell skull rule, the idea that an individual is held responsible for the full consequences of his negligence, regardless of extra, or special damage caused to others. In any event, the gloss added by the House in Wilsher, highly influential though it has subsequently proved to be, cannot in itself supplant the reasoning of the judges in McGhee. He was described by a witness as being covered in dust from head to foot. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact. After the decision in Barker there was a swift and fierce political backlash, with large numbers of workers, families, trade unions, and Members of Parliament calling for the reversal of the ruling. Evidence showed that another possibility was that the law: cause-in-fact, actinolite! Satisfied in the present appeals raise an obvious and inescapable clash of policy considerations weigh in of! 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