Introduction
This essay examines the potential tort law claims of Frederico, Brenda, and Claire against Fisher & Sons and, in Brenda’s case, Dr Chenowith. The focus is on the principles of negligence, particularly duty of care, breach of duty, causation, and the complexities surrounding multiple exposures to harm or contributing factors. It is assumed that Ruth (owner of Fisher & Sons) and Dr Chenowith have failed to meet the expected standard of care. The analysis will address Frederico’s lung cancer claim involving exposure to Xantophene across multiple employers, Brenda’s lung cancer claim compounded by delayed diagnosis and smoking, and Claire’s repetitive strain injury (RSI) due to inadequate workplace equipment. By drawing on key case law and legal principles, this essay aims to advise each claimant on the likelihood of success in their negligence claims, while acknowledging the limitations and policy considerations inherent in tort law.
Frederico: Lung Cancer and Multiple Employers
Frederico’s case raises significant issues concerning causation in negligence claims where harm results from exposure to a hazardous substance (Xantophene) by multiple employers. It is established that prolonged exposure to Xantophene causes lung cancer, and health and safety regulations mandate protective suits for employees. Fisher & Sons neglected to provide such equipment during Frederico’s two-year tenure, as did his previous employer, Kroehner Inc, over five years. The challenge lies in proving which employer’s breach of duty caused or materially contributed to his lung cancer, especially since Kroehner is now out of business.
The landmark case of Fairchild v Glenhaven Funeral Services [2002] UKHL 22 provides critical guidance here. In Fairchild, the House of Lords held that where a claimant suffers mesothelioma due to asbestos exposure from multiple negligent employers, and it is impossible to pinpoint which exposure caused the disease, each employer can be held liable if their breach materially increased the risk of harm (Fairchild, 2002). Lord Hoffmann noted that requiring precise proof of causation in such cases would “empty the duty of content,” rendering it ineffective for claimants working under multiple employers. Although Fairchild specifically addressed mesothelioma, subsequent interpretations, particularly by Lord Rodger, suggest a broader application to other diseases where multiple exposures create an indivisible harm.
Applying this to Frederico, Xantophene exposure mirrors asbestos in creating cumulative risk over time. While lung cancer may differ from mesothelioma in pathology, the principle of material contribution to risk arguably applies. Fisher & Sons could be held liable for increasing Frederico’s risk of harm, even if the fatal exposure originated during his time at Kroehner. However, Lord Bingham’s six-part test in Fairchild limits such claimant-friendly approaches to specific scenarios, raising uncertainty about whether Frederico’s case fully aligns. Additionally, since Kroehner is defunct, Fisher & Sons might argue they should not bear full responsibility. Nevertheless, policy considerations, including employer insurance (as noted in Nettleship v Weston [1971] 2 QB 691), support holding Fisher & Sons accountable for their breach.
Brenda: Lung Cancer, Smoking, and Medical Negligence
Brenda’s situation involves exposure to Xantophene solely at Fisher & Sons, alongside her smoking habit and a delayed diagnosis by Dr Chenowith. Her claim against Fisher & Sons hinges on establishing that their failure to provide a safety suit caused or materially contributed to her lung cancer. Unlike Frederico, there is no issue of multiple employers, simplifying causation. Under the McGhee v National Coal Board [1973] UKHL 1 principle, if it is proven that exposure to Xantophene materially increased the risk of lung cancer, Fisher & Sons could be liable, even if the exact contribution cannot be quantified.
However, Brenda’s smoking complicates matters. Defendants often argue that pre-existing or concurrent factors reduce their liability. In Wilsher v Essex Area Health Authority [1988] AC 1074, the House of Lords held that where multiple potential causes exist, the claimant must prove the defendant’s breach was the likely cause on the balance of probabilities. Fisher & Sons might contend that smoking, a known risk factor for lung cancer, was the primary cause. Brenda would need medical evidence to demonstrate that Xantophene exposure significantly contributed to her condition, potentially invoking the Fairchild material risk approach if direct causation is unprovable.
Against Dr Chenowith, Brenda’s claim centres on medical negligence for failing to diagnose her lung cancer despite repeated consultations. The standard of care for medical professionals is set by the Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 test, requiring that a doctor acts in accordance with a responsible body of medical opinion. If Dr Chenowith’s dismissal of Brenda’s symptoms falls below this standard, breach is established. Causation, however, requires proving that earlier diagnosis would have materially improved her survival chances. In Gregg v Scott [2005] UKHL 2, the court clarified that loss of a chance in medical negligence is not generally compensable unless the delay demonstrably caused a worse outcome. Brenda must provide evidence that timely intervention would have altered her prognosis.
Claire: Repetitive Strain Injury and Workplace Negligence
Claire’s claim involves repetitive strain injury (RSI) from inadequate equipment at Fisher & Sons, where she worked as a temporary receptionist for two weeks. Ruth’s refusal to provide an ergonomic chair and keyboard likely constitutes a breach of duty under the Health and Safety at Work Act 1974, which mandates employers to ensure employee welfare. The case of Donoghue v Stevenson [1932] AC 562 establishes a general duty of care to prevent foreseeable harm, and employers are typically held to a high standard in providing safe working conditions.
Causation, however, poses a challenge. Claire’s short tenure at Fisher & Sons raises questions about whether two weeks of exposure could cause RSI, especially given her prior week-long role at a supermarket checkout. The ‘but for’ test in Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 requires Claire to show that, but for Ruth’s negligence, she would not have suffered RSI. If medical evidence suggests her injury resulted from cumulative strain across jobs, Fisher & Sons might argue their contribution was minimal. Additionally, the de minimis principle could apply if the harm is deemed negligible. Claire would need to demonstrate that Fisher & Sons’ breach materially contributed to her injury, possibly relying on expert testimony about the rapid onset of RSI under poor ergonomic conditions.
Conclusion
In summary, Frederico, Brenda, and Claire each face distinct challenges in pursuing negligence claims under tort law. Frederico’s claim against Fisher & Sons benefits from the Fairchild principle, allowing liability for material risk contribution despite multiple employers, though uncertainties remain about its scope. Brenda’s dual claims against Fisher & Sons and Dr Chenowith hinge on proving causation amidst complicating factors like smoking and delayed diagnosis, with legal tests like McGhee and Gregg shaping outcomes. Claire’s RSI claim, while straightforward in establishing breach, struggles with causation given her brief employment. These cases highlight the complexity of negligence law, balancing policy-driven claimant protections with the need for evidential rigour. Ultimately, each claimant must secure robust medical and expert evidence to navigate causation hurdles and succeed in their claims.
References
- Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428.
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
- Donoghue v Stevenson [1932] AC 562.
- Fairchild v Glenhaven Funeral Services [2002] UKHL 22.
- Gregg v Scott [2005] UKHL 2.
- McGhee v National Coal Board [1973] UKHL 1.
- Nettleship v Weston [1971] 2 QB 691.
- Wilsher v Essex Area Health Authority [1988] AC 1074.
