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Tort XXII - Causation VIII

Updated on June 16, 2017

In Margereson & Hancock v JW Roberts Ltd (1996) two children, the plaintiffs, who grew up playing close to a factory, later had cancer because they were exposed to asbestos dust from the factory. The plaintiffs sued.

Despite the fact that the damage suffered was removed from the time the plaintiffs were close to the factory, they were successful. The court held that it was foreseeable that the defendants’ negligence in allowing the contaminants to escape would lead to some type of illness or other to anyone that came in contact with the pollutants and that illness may be detached from the time the victims were exposed to the contaminants.

Delay in the impact of being exposed to pollutants is a facet of environmental damage and illnesses incurred as a result of being exposed to fumes and dusts released from factories often manifest or materialize at a later time or place.

In OLL v Secretary of State for the Home Department (1996) 8 boys, 2 teachers and an instructor were lost during a canoeing trip. A report was lodged and the coastguard was called in to locate them. They were subsequently found but soon after 4 of the boys died and the others suffered from hypothermia. An action was brought against the organizers who in turn brought an action against the coastguard. The second claim was unsuccessful.

The duty that is owed by the coast guard is similar to that which is owed by the police in that; they do not per se owe members of the public a duty of care.

In this instance, however one looks at it, it is difficult to hold the coastguard accountable or responsible especially given the fact that they were called in only after the incident had taken place and it is fair to argue, given the prevailing conditions (weather) the boys, teachers and instructor shouldn’t have been out canoeing in the first place.

In Mulcahy v Ministry of Defense (1996) we examine the duty owed by the army to its soldiers. The plaintiff was a soldier deployed during the Gulf War and he was standing too close to a machine gun, a howitzer, and as a result suffered damage to his hearing. Like the example we gave earlier of members of the groundcrew who sustain hearing damage as a result of being exposed to aircraft take-off’s or artillery crews suffering hearing damage when the guns are fired, does the army, navy or air force owe its staff a duty of care?

It was held that the army does not owe its servicemen and women a duty of care and the decision is largely one of policy. The number of servicemen and women that incur some form of injury as a result of serving in the armed forces is high and should the armed forces be held accountable for every injury that its men and women suffer, it would have to pay out large figures in damages each year. A majority of cases however go unreported.

It is also fair to say that the rules with regards or reference to the employer-employee relationship are not applicable to the armed forces.

Let’s look at another situation. What happens if the plaintiff was provided with earmuffs or ear protectors and suffered hearing impairment as a result of defective earmuffs? Does the plaintiff have an action against the defense contractor(s) who supplied the earmuffs?

In R v Corydon Health Authority (1997) the plaintiff went for a chest x-ray which was a routine requirement prior to commencing employment and the radiologist negligently failed to report a significant abnormality. The plaintiff subsequently became pregnant and was diagnosed with PPH (primary pulmonary hypertension), which could be aggravated or worsened by pregnancy. The plaintiff had the child but became progressively depressive as a result of believing that her life expectancy had been reduced. The plaintiff sued for psychiatric illness.

It was held that the defendant was liable but the damages were reduced in lieu of the fact that the decision to become pregnant was that of the plaintiff. The plaintiff might not have become pregnant if she had known the facts but it is a matter of proving that in court and in this instance the best option was to probably divide the responsibility.

In Church of Latter-Day Saints v Yorkshire Fire and Civil Defense Authority (1997) the plaintiffs’ premises was on fire and the plaintiffs called in the fire brigade. When the fire brigade arrived, they realized that the fire hydrants did not have adequate water supply and as a result they couldn’t put out the fire.

The fire department in addition to firefighting duties is also tasked with the regular inspection and maintenance of fire hydrants. The plaintiffs sued.

The courts held that there was no duty owed. The decision is largely based on public policy and to prevent the fire department from being encumbered by additional liability.

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