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Tort XXXV - Remoteness IV

Updated on August 28, 2017

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 the 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.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward


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