A Claim against Ruff Ltd, Right Ltd and Shoddy Plc Betty Bloke - Essay Example

Introduction In order to substantiate a claim against Ruff Ltd, Right Ltd and Shoddy Plc Betty Bloke is required to first establish whether or not these companies are liable either outright or vicariously for the transfer of asbestos from Mr. Bloke to Betty Bloke. Once liability is established, Betty Bloke will necessarily have to determine whether or not Ruff, Right and Shoddy were negligent and whether or not they each owed each Betty a duty of care. Negligence depends entirely on whether or not the companies were in breach of that duty of care. Once negligence is established, Mrs. Bloke can pursue damages against Ruff Ltd., Right. Ltd and Shoddy Plc under the Compensation Act 2006 since it permits joint liability when asbestos exposure can be attributed to two or more defendants.1 The Duty of Care The test for determining whether or not a duty of care exist was first established by the landmark case of Donoghue v Stevenson. In this case Lord Atkin introduced the neighbour principle which is the accepted test used for ascertaining whether or not a duty of care is owed and to whom. According to this principle a duty of care exists in the sense that an individual is required to take all necessary precautions to prevent injury to one’s neighbour. ‘Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to question’.2 Over the years the neighbour principle has become the cornerstone for all cases involving tortuous claims. In the leading case of Caparo Industries v Dickman the neighbour principle was elaborated on. It was held that in order to ascertain whether of not a duty of care existed there must be proximity of relationship between the parties. First and foremost, however, the resulting harm must have been foreseeable. Moreover, the imposition of a duty of care in the circumstances must be fair, just and equitable.3 In a later case it was held that the criteria set forth in Caparo Industries v Dickman was applicable and relevant in all subsequent cases.4 As to whether or not it is fair or just to impose a duty of care Lord Diplock addressed the issue in Dorset Yacht Co. Ltd v Home Office. He simply said that ‘the choice is exercised by making a policy decision whether or not a duty of care ought to exist.’5 In this case a successful claim was made against the Home Office in respect of Prison Officers when juvenile delinquents in their custody caused damage to boats in a harbour. It was held that the Home Officer via its Prison Officers did in fact owe a duty of care to the boat owners. With reference to the established principles for the imposition of a duty of care it would appear that Betty Bloke as the wife of their employee Mr. Bloke was a person that ought to have been within their contemplation. Moreover, by virtue of the Health and Safety at Work Act 1974 all three companies are under a statutory duty of care to make provision for the health and safety of all employees. By failing to do so they effectively put a member of Mr. Bloke’s family at risk. Section 2 of the 1974 Act Provides as follows:- ‘2. (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. (2) Without prejudice to the generality of an employers duty under the preceding subsection, the matters to which that duty extends include in particular (A) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (B) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (C) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (D) so far as is reasonably practicable as regards any place of work under the employers control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (E) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.’6 The duty of care in respect of asbestos exposure also requires a special duty of care under the Compensation Act 2006. The 2006 Act was a response to the House of Lords’ decision in Fairchild v Glenhaven Funeral Services Ltd and others [2002] 2 WLR 1353 in which it was decided that once a person contracts a mesothelioma after being wrongfully exposed to asbestos at different periods of times by different defendants the affected person was at liberty to claim damages against any of the responsible persons even if he could not ascertain which incident of exposure contributed to the disease since each exposure contributed to the risk.7 The Compensation Act 2006 also encapsulated the House of Lords ruling in Barker v Corus UK Ltd (and conjoined cases) [2006} 122 LQR 189 where it was held that damages would be shared in accordance with the degree of exposure attributed to each defendant.8 As a result of these rulings and the Compensation Act 2006, Mrs. Bloke is entitled to recover damages from each of Mr. Bloke’s former employers in an amount which is consistent with the term of years that he was employed with each employer. However, it will first be necessary for Mrs. Bloke to demonstrate that each employer was negligent. Breach of Duty/Negligence The standard of care required for establishing whether or not there was negligence or a breach of duty, is the reasonable man test. The question is; is the defendant’s conduct or omission that of the reasonable man?9 The reasonable man test was introduced as early as 1856 by Alderson J who said; ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’10 The facts of the case for discussion, indicate that Mr. Bloke worked in three companies which permitted him to be exposed to asbestos and obviously did not make provision for Mr. bloke to wear protective clothing while at work therefore putting him at risk of not only exposure to asbestos but the risk of transferring the asbestos to others which he might come into contact with himself. In a case where a learner driver was driving carefully and accidentally ran into a lamp post thereby causing injury to his driving instructor was found to be negligent. It was held that ‘the learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience, and care.’11 In light of this ruling it is obvious that each of the companies were incompetent in the measures they took, if indeed they did take any measures to protect employees from exposure to asbestos and the risk of transfer. In another case a motorist who sustained a brain haemorrhage while navigating his car caused an accident. It was held that the brain haemorrhage did not function to cause automatism and did not exonerate the motorist. By failing to stop in time to avoid the accident he was not conducting himself as the reasonable man in the circumstances would have done.12 In light of the application of the reasonable man test in both Roberts v Ramsbottom as well as Nettleship v Wettson, it is unlikely that the three companies will escape liability under the reasonable man test. In fact, in cases where a person is expected to possess special skills as a result of his profession or training the standard of care is slightly different. The defendant will be judged by the standard anticipated of the reasonable member of the relevant profession or trade rather than the standard anticipated by the reasonable, ordinary man.13 Carpenters by the very nature of their trade are very well aware of the likelihood of exposure to asbestos and the risk to health that such exposure is likely to cause. It is also to be expected that risk of transfer in circumstances where the employee is not outfitted with protective clothing is a very real probability. Causation and Remoteness Causation and remoteness are relevant to the duty of care and the breach of that duty. Betty Bloke will be required to establish that Ruff, Right and Shoddy’s negligence did in fact cause the transfer and the resulting harm if she is going to substantiate a successful claim against the three companies with whom Mr. Bloke was employed. The applicable question is: Was the transfer of asbestos and the resulting damages reasonably foreseeable in all the circumstances? Two cases, The Wagon Mound (no.1) and The Wagon Mound (no.2) provide some useful guidelines. In The Wagon Mound (no.1) the defendant was conducting some welding repairs to a ship in Sydney Harbour when a plank fell setting off sparks which ignited and spread as a result of oil spillage from the ship under repairs. In a law suit by the wharf owner it was held that while it was reasonably foreseeable that escaping oil might damage the wharf, damage by fire was not reasonably foreseeable. As a result the defendant was not liable for the damages sustained as a result of the fire.14 In The Wagon Mound (no.2) the suit was commenced by one of the other ship owners whose ship sustained damages based on the same facts of The Wagon Mound (no.1) In the second case the House of Lords held that the cost of minimizing the risk of fire was relatively low since all the defendant had to do was to arrest the oil spillage. Consequently the defendant was liable. Viscount Simmons said that ‘a man must be responsible for the probable consequences of his act…not because they are natural or probable but because …it is judged by the standard of a reasonable man that he ought to have foreseen them. …if some limitation must be imposed …why should that test [reasonable foreseeability] be rejected, since the wrongdoer is judged by what the reasonable man ought to foresee and a test [of direct consequence] be substituted which leads to nowhere but to the never ending and insoluble problems of causation. …the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen it.’15 Reasonable foreseeability will depend on three applicable questions. 1. Was it reasonable to contemplate that the defendant would be involved to such an extent that a duty of care can be implied? 2. Were the damages sustained of a type that could have been reasonably forseen? 3. Was the accident itself capable of being contemplated?16 Betty Bloke’s circumstances are slightly different in that contributory negligence might be applicable. If her asbestos poisoning, by virtue of the manner in which she shook the dust from the clothing was a result of negligence on her part she will share responsibility for her resulting damages with the defendant under Civil Liability (Contributions) Act 1978 which provides as follow:- ‘… any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)’ (Civil Liability (Contributions) Act 1978 Section 1(1)) The difficulty with raising liability in respect of Mrs. Bloke’s conduct is establishing whether or not she had sufficient knowledge of the presence of asbestos and its possible risk. The facts of the case do not suggest that she had any knowledge of the contents of Mr. Bloke’s clothing and all that can be gleaned from the facts is the Mrs. Bloke thought that she was cleaning dust from the clothing. Vicarious Liability By virtue of vicarious liability, employers are generally liable for the negligent consequences of employees acting in the course of their employment. The ‘control test’ was an early development at common law very early and is used to define employee/employer relationships. In Yewens v Noakes an employee was held to be a person who is under the directions and command of another who is the employer.17 Assuming that at all material times, Mr. Bloke was employed by Ruff, Right and Shoddy within the meaning of the tests enunciated above, it is still necessary to establish that he was acting in the course of his employment when he arrived at home and undressed. If he had been off on a frolic of his own, Ruff, Right and Shoddy will not be vicariously liable. On the facts of the case for discussion, it is difficult to separate the act of dressing and undressing with respect to work clothing from the duties of ones work. Therefore on the facts of the case it is reasonable to conclude that at all material times Mr. Bloke was acting in the course of employment when he arrived at home and undressed from his work clothes. Sources Barker v Corus UK Ltd (and conjoined cases) [2006} 122 LQR 189 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 Caparo Industries v Dickman (1989) 2 WLR 316 Compensation Act 2006 Donoghue v Stevenson (1932) AC 562 Dorset Yacht Co. Ltd v Home Office (1970) AC 1004 Fairchild v Glenhaven Funeral Services Ltd and others [2002] 2 WLR 1353 Health and Safety at Work Act 1974 Hepple, Howarth and Matthews, Tort. Cases and Materials (2000) Sweet and Maxwell Kent v Griffith (2000) 2 ALL ER 474 Lunney, Mark and Oliphant, Ken. (2003) Tort Law: Text and Materials Oxford University Press. Marc Rich & Co v Bishop Rock Marine Co (1995) 3 ALL ER 307 Nettleship v Weston (1971) 2 QB 691 Overseas Tankship (UK) LTD v Marts Dock & Engineering Co LTD (The Wagon Mound No 1) (1961) AC 388 Roberts v Ramsbottom (1980) 1 WLR 823 Salmon v Seafarer Restaurants (1983) 1 WLR 1264 Stevenson, Jordan and Harrison v M&E (1952) 1 TLR 101 Storey v. Ashton (1869) LR 4 QB 476 Street, Harry. Street on Torts (2003) Sweet and Maxwell The Wagon Mound (No 2) (1967) 1 AC 617 Wells v Cooper (1958) 2 ALL ER 527 Winfield and Jolowicz on Tort (2006) 17th Edition. Sweet and Maxwell Yewens v Noakes (1880) 6 QBD 530 Read More