Landmark Industrial Disease Cases

Whilst some areas of industrial disease compensation are underpinned by statutory obligations on employers, much of this area of law still relies on precedent from previously decided cases.

The Basic Principles Of Tort

Industrial disease claims are governed by the basic principles of tort law, particularly those which cover the requirements for establishing a duty of care to an employee, and assessing whether that duty has been breached. Whilst it is a commonplace in the law that an employer owes a duty of care to their employees, it is nonetheless important to understand why this might be. The foundational case in this area is Caparo Industries plc v Dickman [1990], which dictates that for a duty of care to be established between two parties, harm must be reasonably foreseeable, sufficient proximity between them must exist, and it must be fair, just and reasonable to establish a duty.

When such a duty has been established, it is also necessary to establish that it has been breached. Where statute is silent on the standard required of an employer, the traditional test is that of the ‘reasonable person’, which is taken from the case of Blyth v Birmingham Waterworks Company [1856]. In other words, if a reasonable and objective observer would either not have acted as the employer did, or would have done something differently, then the employer is negligent.

Causation And Damages

The area of law which has seen the most development within industrial disease claims is causation, and specifically how damages should be allocated within claims in which it is difficult to prove which employer caused a disease. These issues have most regularly come about in cases involving asbestos, and particularly the condition of mesothelioma. This is because mesothelioma can be caused by a single exposure to asbestos, and medical science is not able to isolate which exposure is the ‘guilty’ one. For that reason, Fairchild v Glenhaven Funeral Services [2002] is a vitally important judgment, in which the House of Lords decided that the normal rules of causation could be altered in such a situation. Even if only one employer of many negligent employers actually caused the harm, all could be liable for damages if they all exposed the employee to asbestos negligently.

Recent Cases

The ruling in Fairchild has led to a flurry of litigation, and the Supreme Court has had a number of opportunities to revisit it over the last few years. The most recent judgment of the court, Sienkiewicz v Grief (UK) Ltd [2011], reaffirmed Fairchild. In fact, it even extended the causation principle from Fairchild to cases in which there is only one negligent exposure to asbestos and a number of ‘innocent’ exposures. In such claims, the negligent employer must take the whole burden of damages, despite the fact that they might not have actually caused the disease.

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