Date: Wed, 25 Feb 2004 15:57:02

From: Ken Oliphant

Subject: Fairchild and proportionate damages

Jason,

I 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.

One question we pose is this (p. 201):

While working for D1, C inhales quantities of asbestos wholly as a result of his employer’s 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 D2’s negligence, and asbestosis is now diagnosed as a result of the accumulation of fibres in C’s lungs. If C sues D1, can it be said that D1’s negligence caused the asbestosis? If C sues D2 and establishes liability, will he get proportionate damages reflecting D2’s 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?

Have to admit I'm not sure of the answer, so would be particularly interested in anyone else's views.

Ken

Ken Oliphant, Cardiff Law School, PO Box 427, Cardiff CF10 3XJ

Tel: 029 2087 5365. Web page: http://www.cf.ac.uk/claws/staff/oliphant.html.

>>> Jason Neyers 25/02/04 12:03 AM >>>

The argument of course assumes that Holtby is correct -- a rather contentious issue in some circles.

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