Wed, 25 Feb 2004 15:57:02
Fairchild and proportionate damages
initially thought Holtby
was bad, but I've come round to it a bit now. But I do recognise
that there are going to be several problems in its application.
Still, the principle has been recognised by the Court of Appeal
on several occasions now. For references, see Lunney & Oliphant,
Tort Law, 2nd, pp. 199-201.
question we pose is this (p. 201):
working for D1, C inhales quantities of asbestos wholly as a result
of his employerís negligence. The quantities are not such as to
warrant a diagnosis of asbestosis, but they make him more susceptible
to asbestosis in the future. In his subsequent employment with D2,
C inhales further quantities of asbestos as a result of D2ís negligence,
and asbestosis is now diagnosed as a result of the accumulation
of fibres in Cís lungs. If C sues D1, can it be said that D1ís negligence
caused the asbestosis? If C sues D2 and establishes liability, will
he get proportionate damages reflecting D2ís contribution to the
total exposure? Or is he entitled to full damages on the basis that
D2 must take his victim as he finds him (i.e. with some asbestos
in his lungs) and it was the additional exposure to asbestos that
caused the injury?
to admit I'm not sure of the answer, so would be particularly interested
in anyone else's views.
Oliphant, Cardiff Law School, PO Box 427, Cardiff CF10 3XJ
029 2087 5365. Web page: http://www.cf.ac.uk/claws/staff/oliphant.html.
Jason Neyers 25/02/04 12:03 AM >>>
argument of course assumes that Holtby is correct -- a rather contentious
issue in some circles.
Previous Message ~ Index ~ Next