Tort Law

1) Andrew, Brian and Cyril all worked in David’s steel processing factory, and
following exposure to certain toxins in the air they all developed a debilitating lung
disease called toxidustocis and want to sue David in respect of the harms caused
by this exposure. David seeks your advice as to his potential liability. He claims
that in all cases the consequences of his negligence have been obliterated by the
following events:
a) Upon developing the disease, Andrew resigned from David’s factory and
found employment as a security guard in a shopping centre but was shot in
the chest by robbers whilst on duty. These injuries mean that Andrew can no
longer work at all. (The robbers, incidentally, were never identified and cannot
be sued).
b) Since leaving the employ of David, Brian has developed emphysema (a highly
debilitating lung disease). Whilst the symptoms of Brian’s emphysema and his
toxidustocis are very similar, Brain is in much more pain and discomfort (and
has a much shorter life expectancy) than before the onset of this second
illness. Medical evidence states that Brian’s emphysema cannot be attributed
to the exposure of the toxins in David’s factory (it is more likely to have been a
result of Brian’s life-long smoking habit).
c) Cyril’s physician, Dr Evil, (wrongly) decided that a lung transplant would cure
the toxidustocis. The operation was a disaster and although Cyril would never
have recovered from the toxidustocis, the consequences of the failed
operation have made his situation radically worse. David wants to know if Dr
Evil should be liable, and if so, to what extent.
2) David also denies liability on the basis that in his factory toxic dust is produced by
several different machines in equal measure. David admits that had he properly
maintained the dust extractor on one of his machines that less dust would have
entered the air, but points out that in respect of his other machines there was
nothing that he, or any other employer, could do to prevent exposure – it was
simply an inevitable and lawful consequence of the nature of the factory.
3) David knows that the claimants had worked for another steel processing factory
(owned by Frink) for a number of years before they worked for him and says that
Frink should be partly responsible for Andrew, Brian and Cyril’s illnesses,
because Frink subjected all of the claimants to the same level and type of toxic
dust. David has heard that courts have the power to attribute liability to one
defendant in these cases and seeks your reassurance that the so-called Fairchild
exception or s.3 of the Compensation Act 2006 cannot be used against him.

Causation is an act (or omission) by the defendant in breach of a duty he owed the claimant
and which causes harm to a claimant’s “interest protected by law”1; this harm must not be
too remote. Causation is a matter for the jury to decide. Causation is both a question of facts
and law. In factual causation, the defendant’s act is necessary to the appearance of the
damage: on the balance of probabilities (51%), the negligent act must have caused the
damage—“but for” it, the event would not have occurred. For legal causation, the claimant
must show that the defendant’s act made a significant and not trivial contribution to the
result2, that the damage was reasonably foreseeable. A new act may break the chain of
causation, where “another unforeseeable act occurs and if ‘the second cause is so
overwhelming as to make the original [act] merely part of the history’3.” If the chain of
causation is broken, the defendant is relieved of his responsibility: that is what David is
claiming.

1) a)
In Andrew’s case, the illness and the shooting are two independent events causing a similar
damage to Andrew’s chest. Where does the first defendant’s responsibility end? Does the
second injury break the chain of causation by obliterating the first defendant’s
responsibility?
The case to apply here is Baker v Willoughby [1970]:4 Mr Baker suffered a leg injury when he
was hit by the defendant’s car, ultimately losing his job because of the injury. Before the
case was heard, Mr Baker was shot in the leg during a robbery at his new place of work; his
leg had to be amputated. The defendant argued that his liability ended at the moment of the
shooting because the first injury was “obliterated”. The House of Lords upheld Mr Baker’s
appeal, rejecting the defendant’s argument on the basis that it would produce a manifest
                                                                                                                       
1

Dictionary: “causation”
idem
3
Lord Parker CJ in R v Smith [1959] 2 QB 35 at 42-43.
4
Baker v Willoughby [1970] AC 467
2

injustice, in part because the robbers could not be sued and the claimant would clearly be
under-compensated. As Lord Reid put it, “[Mr Baker’s] loss is not in having a stiff leg; it is
in his inability to lead a full life…and his ability to earn as much as he used to earn or could
have earned if there had been no accident. In this case the second injury did not diminish
any of these. So why should it be regarded as having obliterated or superseded them?”5
Here, Andrew has developed a disease that hinders his ability to fully live, and led to his
resignation from David’s factory, as it was the case for Mr Baker. In his new course of
employment and before the trial, he was shot in the chest by robbers, effectively preventing
him from working at all anymore; it is comparable to Mr Baker’s leg being amputated,
depriving him of opportunities in life. Since the robbers were not identified and cannot be
sued at all, it would not be fair to Andrew to end David’s liability at the time of the shooting,
considering the second injury did not diminish Andrew’s loss.
The chain of causation does not seem to be broken, and David will remain liable for the full
extent of the plaintiff’s damages.

b)
In Brian’s case is similar to Andrew’s case, but the second event is of natural causes. Does
David’s liability end with Brian developing emphysema or with Brian’s life? Does the onset
of the second illness break the chain of causation?
The case to be applied is Jobling v Associated Dairies Ltd [1982]6: Mr Jobling suffered a back
injury at work, which brought about a 50 per cent reduction of his earning capacity. Before
the trial, he developed a disease of the spine, which left him totally unable to work.
According to Baker7, the defendant should be liable for Mr Jobling’s reduced earning
capacities for life. However, the court held that the defendant was only liable until the onset
of the spine disease, as the second illness was independent from the first injury and as “even
                                                                                                                       
5

Lord Reid, Baker v Willoughby [1970] AC 467 Page 492
Jobling v Associated Dairies Ltd [1982] AC 794
7
Baker v Willoughby [1970] AC 467
6

if the plaintiff had never sustained the tortious injury, his earnings would now be reduced or
extinguished”8. Holding the defendant liable for Mr Jobling’s life would be unjust as he
would clearly be over-compensated.
Here, Brian developed a lung disease from working in David’s factory, inducing his
resignation from his employment. Before the trial, he developed an illness which has similar
symptoms but inflicts much more pain and discomfort on Brian, reducing his life
expectancy. As Mr Jobling’s spine disease was not related to his back injury and he would
have suffered it anyway, Brian’s new lung disease is a separate issue from his work. Medical
evidence states that not only was the new illness not provoked by Brian working at David’s
factory and being exposed to the toxins, it is likely to have been a result of Brian’s own lifelong smoking habit.
The chain of causation has been broken by Brian developing a new unrelated disease, and
holding David liable for Brian’s life would clearly be unjust. David is liable for Brian’s
reduced earning capacity up to the time of the onset of the new disease.

c)
In Cyril’s case, following the injury at David’s factory was a failed operation which left him
in a worse situation than before. Have the consequences of David’s negligence been
obliterated by Dr Evil’s failed operation?
The relevant case is Rahman v Arearose and Another [2001]9: Mr Rahman was assaulted
while working at the first defendant’s restaurant; he was severely injured in his right eye, but
would probably recover given adequate treatment and time. The claimant went to the second
defendant’s hospital to receive an operation which through negligence blinded him in his
right eye. In addition, the claimant developed post-traumatic stress disorder, a specific
phobia of Afro-Caribbean people with paranoid elaboration and an enduring personality
                                                                                                                       
8
9

Lord Bridge, Jobling v Associated Dairies Ltd [1982] AC 794 Page 820
Rahman v Arearose and Another [2001] QB 351

change. The first defendant was held responsible for the physical injuries and the
psychological trauma, and the hospital would compensate the rest, considering the failed
operation did not obliterate the consequences of the first. Applying Baker v Willoughby, the
court found that the second injury does not supersede the first one, so Arearose remained
liable for their breach of duty towards the claimant. However the hospital was held liable for
any increase in harm to Mr Rahman and would compensate the rest. The damages would be
apportioned between the defendants, assessing their responsibility by reference to the extent
to which their negligence had contributed to the claimant's total loss.
Here, Cyril was injured while at work then suffered a disastrous operation which made his
situation far worse than before. He suffered pain and possibly psychological trauma and
personality change, both from David’s negligence and form the hospital’s.
David will be held responsible for Cyril’s injury, as will Dr Evil. The damages due to Cyril by
each defendant will be decided by the court in respect of that loss and damage for which he
should justly be held responsible (in Rahman10 it was concluded to be concluded that in
terms of causative potency the second defendants' negligence was three times more
significant than the firsts’). However, since the second defendants should not be held
responsible for damage which had already been wholly inflicted by the first defendant,
David will be held liable in full for the loss of earnings for the period between Cyril
developing the illness and the failed operation.

2)
David denies liability on the basis that although his employees’ illness was the consequence
of being exposed to toxic dust, there was nothing he or anyone else could have done to
prevent exposure, even though one of the machines was not properly maintained and
induced a greater quantity of dust to enter the air. There is uncertainty as to whether the
                                                                                                                       
10

Rahman v Arearose and Another [2001] QB 351

defendant’s negligence has caused the damage. Is there factual causation between David’s
possible breach of duty and his ex-employees’ illness?
The case that applies is Bonnington Castings Ltd v Wardlaw [1956]11: the claimant had
developed pneumoconiosis, a lung illness because he had inhaled dust coming two different
sources, one of which involved no breach of duty by the employer while the other did. The
issue was whether, as there was no evidence to show the proportions of dust emanating from
the various sources of dust, the claimant could prove that on the balance of probabilities the
guilty dust had caused his disease. The court held that as the lung disease the claimant
contracted was a disease which is aggravated by the inhalation of increased quantities of
dust and it had been shown that the proportion of guilty dust was not negligible, the guilty
dust had contributed materially to the claimant’s contracting the illness. The defendant was
found liable.
Here there also is a mix of guilty and innocent dust, as no one can prevent some of it to enter
the air but David did not properly maintain one of the machines. Toxidustocis, the lung
disease David’s employees developed, seems similar to pneumoconiosis and probably is of
gradual incidence: if indeed it is a cumulative disease, the “but for” test cannot apply as it is
impossible to determine on the balance of possibilities which dust provoked the onset of the
illness.
David will be found liable as long as the claimants can show that the proportion of dust from
the improperly maintained machine in the factory was not negligible and hence contributed
materially to the claimants’ developing the illness.

3)
David’s employees have all been employed before in another factory which exposed them to
the same level and type of toxic dust. Is only David liable, or is the first employer also
                                                                                                                       
11

Bonnington Castings Ltd v Wardlaw [1956] AC 613

liable? If both are, are they liable severally (the parties are only liable for their respective
obligations) or both severally and jointly (each claimant is liable to the full amount)?
In Fairchild v Glenhaven Funeral Services [2002]12, different claimants had all been exposed
to asbestos by multiple employers and had all contracted mesothelioma. This illness is not a
result of cumulative exposure, and as such it was impossible to determine which employer
was responsible. In order for the claimants to be justly compensated, the court extended a
test they had already established; as Lord Rodger puts it, “…by proving that the defendants
individually materially increased the risk that the men would develop mesothelioma…the
claimants are taken in law to have proved that the defendants materially contributed to their
illness”13. The court created an exception by which all former employers who had exposed
the employees to asbestos which had resulted in mesothelioma would be held jointly and
severally liable. Since then this exception has been introduced in s.3 of the Compensation
Act 2006.
Here, the three employees contracted toxidustocis, an illness that seems to be linked to the
amount of dust to which the men have been exposed, just as pneumoconiosis or asbestosis,
and as opposed to mesothelioma which requires single exposure. S.3 of the Compensation
Act 2006 explicitly refers to mesothelioma and as such does not apply to David’s case. The
Fairchild exception has only been used in connection with mesothelioma cases, and should
not apply to David either.

Toxidustocis seems to be a cumulative disease. A case to be referred to is Holtby v Brigham
& Cowan (Hull) Ltd [2000]14, where the claimant, who had developed a cumulative disease,
had worked half of the time for the defendants and the other half for another employer. It
was held that the defendant should be liable only for the damage they had caused. “In

                                                                                                                       
12

Fairchild v Glenhaven Funeral Services [2002] 3 All ER 305
Lord Rodger, Fairchild v Glenhaven Funeral Services [2002] 3 All ER 305 at 168
14
Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421.
13

diseases where the condition is a cumulative one and the extent of the defendant’s
contribution is known they will only be liable to that extent.”15
David should only be liable to the extent of his contribution to the claimants having
developed the illness, which depends on the time they have worked at his factory compared
to the time whey worked at Frink’s, who will be responsible for the rest of the damage.

                                                                                                                       
15

Cooke p179