How To Determine If You Have A Legitimate Industrial Disease Claim

Legitimate Industrial Disease Claims

Industrial disease claims cannot be made in all circumstances. To avoid innocent parties being sued, there must have been an instance of negligence for a successful claim to be made. The tests that must be satisfied in order to establish negligence are the existence of a duty of care, the breach of that duty, and a causal link between that breach and the injury or illness suffered by the claimant.

Duty Of Care

The existence of a duty of care is often fairly straightforward to establish when dealing with industrial disease claims. After all, by definition the claimant is an employee at work, during which time they are owed a duty of care by the employer. However, a claim might fall at this first hurdle if the incident occurred at a time during which the employer had no control over the employee, or if the employee was doing something which had no connection to his employment. The existence of a duty of care is also less straightforward if the incident occurs to a visitor or trespasser on the premises of a business. A duty may still be owed by the business under certain circumstances, but such incidents are usually classified under the heading of occupiers’ liability, rather than industrial disease.

Breach Of Duty

If a duty of care exists, then it must have been breached for a claim to succeed. The test for whether a breach has occurred is that of a ‘reasonable standard of care’, and is usually judged by the normal standards of society. In other words, it does not matter whether the employer realised that his duty of care would be breached, as long as a reasonable person in his situation would have known. Similarly, if it was impossible for a reasonable person to foresee a possibility of harm, then no breach of duty can exist. An example of this can be seen in cases involving asbestos poisoning before the risk of exposure was known. Since the employers had no idea that they were breaching their duty of care, a claim could not succeed.

Causation

In some claims, a causal link between the breach of duty and the damage suffered will be easy to prove. The basic method for establishing causation is known as the ‘but-for’ test. On the balance of probabilities, ‘but for’ the defendant’s action, would the damage have ensued? If there is a direct link between the breach and the damage, then there will be no need for further investigation. However, sometimes causation in industrial disease claims can be more complex. For example, it may be impossible to work out which exposure to a noxious chemical caused a disease, or whether one of multiple causes led to damage. In such instances, the courts have developed special rules which usually tend towards the claimant being able to pursue their case if the cause isn’t obviously insignificant. For further details, it is worth researching the case of Bonnington Castings [1956] and the case of Fairchild [2002].

VN:F [1.9.22_1171]
Rating: 5.0/5 (1 vote cast)
How To Determine If You Have A Legitimate Industrial Disease Claim, 5.0 out of 5 based on 1 rating

Know someone that could use this information? Send this page by clicking on the SHARE button below: Bookmark and Share

“Industrial

HAVE MORE QUESTIONS?
SIGN UP for a FREE Consultation with a Claims Specialist

Your Name

Your Email

Your Phone Number

Did you discover your disease within the last 3 years?

Have you tried to claim for this disease before?

Please Provide a Brief Description of Your Case

Retype the letters into the field below

captcha