Free Tort Law Essay Sample


The corporate world is one of the areas in business that is greatly challenged by different issues that emerge on daily basis. In line with this, the business world has recorded various cases of lack of responsibility in the management of employees in different companies in the United Kingdom, United States, Canada as well as other parts of the globe. This has resulted in injuries as well as deaths. However, the government of the United Kingdom as well as the United States and Canada has formulated laws, policies and regulations that are meant to help employers to take responsibility in the management of employees to avert different physical risks that could occur while the employees are working for the company. Apart from reducing risks of physical injuries, these laws, policies and regulations also reduce the chances of legal actions being taken against a particular company.

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In line with this, one of the laws, policies and regulations that have been put in place is the tort law. Essentially, the tort law is meant to offer guidance in regard to civil wrongs that are committed against a person. According to Harlow (2005), the tort law establishes the circumstances in which a person whose interests have been harmed by another can be compensated through the civil courts (1). In this regard, the person that is wronged expects the civil courts to make judgment that would force the employer to compensate him or her for the injury. Whereas this is the case, decisions that have been made in the recent past in regard to different cases have raised eyebrows on whether there is a departure from traditional principles of causation in negligence and as such, violation of the very law that was supposed to protect both employers and their employees. This is particularly so in reference to Fairchild v Glenhaven Funeral Services Ltd and others case whereby the court ruled the case in favour of the complainant.

Lord Bingham's reasoning

One of the issues that have raised a lot of question in regard to tort law in the United Kingdom is the decision that was made by Lord Bingham in regard to Fairchild v Glenhaven Funeral Services Ltd and others case that resulted in the sustenance of the appeal. Note that his reasoning implies that the employer was liable compensating the employees who had been exposed to harm working environment that resulted in them developing mesothelioma, a serious health condition. In his reasoning, Lord Bingham argued that "I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim" (Lunney and Oliphant 235).

The validity of his reasoning would be argued against various issues that concerns the law. These are policy and principle. To begin with, the reasoning of Lord Bingham is validated by the fact that employers have a duty to implement protective measures to ensure that there is no harm such as physical injury that would befall employees in their course of working with a particular company. In other words, whereas most employers would assume some of the health issues that regard their employees, the law does not assume so. On the contrary, the law requires that employers should not expose their employees to certain risks that would harm them either while working with the company or immediately after leaving the company. In line with this, Lord Bingham's decisions were inclined to the point that the employers mighty not have caused the condition that was being experienced by the complainant. However, the evidence that was collected reveals that there was a higher probability that the employers did not take appropriate steps to ensure that the employees were protected against such conditions as mesothelioma while working for the company.

Arguing from this perspective, it is important to note that Lord Bingham's decision to favour the complainant is valid. The company is mandated to protect employees against industrial injury and illness, as well as minimize the potential loss of production while the employee's responsibility is to follow and observe all safety rules and procedures (Ollek 117). Notably, whereas this is the case, the evidence that was collected shows that there were no protective measures in place that have been implemented by Glenhaven Funeral Services Ltd and others companies that these employees worked for. This implied that the court could not implement a decision that was in favour to the companies.

Apart from principle, Lord Bingham's reasoning is perceived from a policy point of view. To begin with, it was argued that the issue of compensation is complicated by the fact that the employees in some cases are unable to determine who the real cause of their health conditions is. Thus, the court in such a case cannot prosecute the employer because his guilty cannot be ascertained. However, Lord Bingham's reasoning is validated under policy argument by the fact that some employers breach the duty to protect their employees against harm. In this regard, "there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty..."(Lunney and Oliphant 235). Arguing from another point of view, employers owe the employees the duty to protect them against any serious harm, failure to which the court has a mandate to decide in favour of the employees for them to be compensated by their employers. Therefore, as a person interested in law, the reasoning of Lord Bingham has legal weight.

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Fairchild v Glenhaven and Traditional Principles of Causation in Negligence

Another issue that has emerged in the Fairchild v Glenhaven Funeral Services Ltd and others case is whether this case represents a departure from traditional principles of causation in negligence. In other words, are the civil courts moving away from focusing directly on who the cause of a particular health issues or injury and negligence as a basis for compensation? To answer this question, it is important to look at various aspects of traditional principles of causation in negligence as well as the foundation on which the decisions in deciding the Fairchild v Glenhaven Funeral Services Ltd and others case was based on.

In reference to Hart and Honoré (1985), there are three groups under which causation and negligence cases are categorised namely: in the first both wrongful acts are necessary conditions of the harm, in the second, one act is not a necessary condition of the harm since there is some other independent wrongful act sufficient to produce the harm (additional causation), and in the third, even if defendant had complied with the law, this or another event would have produced similar harm (alternative causation) (205). With this in mind, there are various issues that arise in regard to Fairchild v Glenhaven Funeral Services Ltd and others case. To begin with, one of the issues that were to be considered in this case ware what was the real cause of mesothelioma in the complainant's health.

Arguably, this condition is caused by exposure to asbestos. In reference to CURE Media Group (2009), asbestos exposure is the common cause of mesothelioma (5). Remarkably, having known the cause of mesothelioma, one can argue that the Fairchild v Glenhaven Funeral Services Ltd and others case falls in the first group mentioned above whereby both wrongful acts are necessary conditions of the harm (Hart and Honoré 205). In other words, since Glenhaven Funeral Services Ltd failed to implement protective measures to ensure that its employees were protected from harm because they were working in an environment that was saturated by asbestos components, then they acted in negligence and are fully responsible for the patient's conditions. On the other hand, one can argue that Fairchild v Glenhaven Funeral Services Ltd and others case would fall in the second category if the company had not breached the duty of protecting its employees. Arguably, it is possible that the complainant could have contracted the conditions by being exposed to asbestos while cycling home.

In line with this, Fairchild v Glenhaven Funeral Services Ltd and others case does not represent a departure from traditional principles of causation in negligence. On the contrary, the cases emphasizes on the importance of adhering to the laid down safety measures and procedures when setting up a working environment. On this condition, one could be charged with negligence or acquitted depending on the response that such an employer has towards the law. More importantly, it is worthy to note that the decision by the court was not based on the fact that that the employer was the cause of the harmful condition in the employee. On the contrary, the court argued that had there been protective measures and procedures that were being followed in the company, probably the employee would have gotten the condition (Lunney and Oliphant 234).

Working from this point of view, it is important to note that adherence to safety laws in industries and companies is a pertinent issue that should not be taken lightly. On the contrary, irrespective of the fact that an employee can fail to produce evidence as to the actual causality of a particular condition, negligence of any kind could lead to the responsibility of compensation being fully laid on the employer just as in the case of Fairchild v Glenhaven Funeral Services Ltd and others where the employer failed to honour the duty of protecting the employees by creating a safe working environment. Therefore, the court was left with no alternative but to allow the appeal to continue in favour of Fairchild. In reference to Steele (), the employers in such cases are held accountable, not because they are the cause of the harmful condition in their patients, but because of their conduct of failing to honour the laid down laws, regulations and procedures that are meant to protect employees from such conditions (218).

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Principles of Causation: Employer/Employee Cases v Doctor/Patient Cases

The Fairchild v Glenhaven Funeral Services Ltd and others case also raises questions on whether courts apply different principles of causations in employer/employee cases to those applied in doctor/patient cases. To begin with, Hocking and Smith (1999) argues that Medical negligence cases have a lower success rate than that of other negligence suits, largely due to the difficulties in proving causation (124). In other words, it is easier for the civil court to prove causation in a case that involves the employer and his employee as compared to a case that involved the doctor and his patient. This explains why most cases that involve doctor and patients are unsuccessful as compared to cases that involve employers and their employees.

In line with this, there are various factors that have to be considered in a causation case before giving out a specific judgment. First, both the employer/employee cases and the doctor/patient cases involve causation factors. As such, the court has to decide whether one's action (or failure to act) was the main cause of a particular condition. Consequently, it is important to state that the causation factors in an employer/employee cases are more direct and can be determined easily as compared to the causation factors in a doctor/patient cases. For instance, in the Fairchild v Glenhaven Funeral Services Ltd and others case, it was quite obvious that the defendant in this case had failed to honour the duty of protecting the employees (Lunney and Oliphant 235).

However, a similar case involving a doctor and a patient, Gregg v Scott (2005) whereby the patient argued that the cancerous lump under his arm was left without treatment for nine months because of wrong diagnosis by the doctor, which resulted in his reduced chances of recovery by a substantial margin (Mitchell 294). In its judgment, the court argued that the patient's chances of survival were already below 50% and whether the doctor had diagnosed the patient earlier or not, the patient had a slim chance of recovering. In a similar case (Chester v Afshar) where a claimant was operated on the back, which led to spinal paralysis, the court ruled in favour of the claimant by citing the fact that the surgeon did not follow appropriate procedures of informing the patient that there was a risk of spinal paralysis, despite the fact that such a risk was very low (i.e. 0.9-2 per cent) (Mitchell 294).

From the court's point of view, the first case (Gregg v Scott) does not link the doctor misdiagnosis of the patient and the reduced chances of recovery because this chance was already below 50% percent and whether the doctor had diagnosed the patient earlier of later, the patient had little chance of recovery. In the second case (Chester v Afshar), had the surgeon informed the patient of the risk that was involved in the operation, the patient could have aborted the operation or sort for further advice. However, the surgeon neglected this, which made him the cause of spinal paralysis in the patient.

The above cases (Chester v Afshar and Gregg v Scott) reveal important issues that are examined when determining the causative in a doctor/patient case. Notably, whereas from a common man's perspective a doctor may be fully responsible for certain condition, this is not always the case when arguing from the law's point of view. This therefore leads to the conclusion that the courts do not apply different principles of causation in employer/employee cases to those applied in doctor/patient cases (Collins, Hall and Ann 35). On the contrary, the principles of causations in doctor/patient cases examined different aspects to those that are observed in determining the employer/employee cases. This is as a result of the fact that medical procedures are quite complex and therefore the laws, policies and regulations that protect patients are enhanced as compared to those used in protecting employees. However, the principles of causation are the same.


In summation, tort law plays a significant role in determining difficult cases that emerge on a daily basis both at the workplace as well as in the medical field. Notably, one of the issues was spectacular in this paper regards the fact that the employers is taken as being fully responsible for a harmful condition in an employee and therefore responsible for his or her compensation as long as he/she (employer) fails to honour the duty of protecting the employee. On the other hand, this is different when the same issue is referred to a doctor. For instance, the doctor is held accountable if the current conditions was not there from the beginning or was in a manageable state when the patient and the doctor first came into contact. However, this does mean that the courts apply different principles of causations in employer/employee cases to those applied in doctor/patient cases.


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