Question
The employers claim that even if they had supplied protective equipment before 1977 Tom would not have used it, because initially many employees objected to the equipment, saying that it was uncomfortable to wear. The employers also state that Tom did not begin to use the protective equipment regularly until 1980 when he began to appreciate the significance of his hearing loss. It has also become apparent that many years ago Tom contracted an illness which can itself cause progressive long-term hearing impairment, and the employers claim that his present condition is largely, if not wholly, attributable to that illness.
Advise Tom as to:
(a) the basis on which the court would determine whether the employers had been negligent; and
(b) whether, and if so how, he will be able to prove causation
Model Answer
In order for a court to assess whether or not Tom employers have been negligent, the court’s assessment will entirely be inclined in the three questions; Did Tom’s employers owe a duty of care to Tom?, if the answer to the first question is yes, then the court will consider whether the employers breached their duty? Lastly, the court will consider whether that particular breach caused Tom damage, however, that damage must not be too remote.
In tort of negligence, in order to establish tortious liabilities there are three requirements which need to be established. Firstly, duty of care must be owed by the defendant to the claimant, secondly this duty must be breached, meaning that the defendant’s conduct must fall below the standard of care that ought to have been adopted in the circumstance. Thirdly the breach must have caused the claimant’s damage and not be too “remote”.
In this scenario the first issue that the court will consider is, was there a duty of care which employers owed to Tom? The leading modern test on duty of care was established in Caparo v Dickman where it was held that three criteria must be satisfied before a court establishes duty of care; firstly, the damage must be foreseeable; secondly, there must be a sufficiently proximate relationship between the parties, and thirdly, it must be ‘just and reasonable’ for a court to establish a duty of care in the light of policy consideration with which the court is concerned. Based on Caparo, the first criterion on foreseeabilty has to be satisfied. This is a question of what reasonable person would have foreseen as opposed to what the defendant (employers) actually did foresee. Based on facts, it is arguably that a reasonable person would have foreseen, exposing employees on high levels of noise without equipping them with protective equipments will lead to hearing impairments. The second test is that of proximity of relations, which in Lord Oliver’s words in Caparo case, proximity does not necessarily indicate ‘closeness in a physical or metaphorical sense but merely.. a convenient label to describe circumstances from which the law will attribute a duty of care. In the scenario in hand, it is undoubtedly that any court will establish an existence of proximate relationship between Tom and his employers due to the contractual nature of their relationship. Nonetheless, court will also have to consider the last criteria, of ‘just and reasonable’. From the case in hand, it is just and reasonable to impose a duty on employers who exposes their employees in such working environment (excessive noise).
After establishing a duty, the court will then shift to consider if Tom employers breached their duty. Breach of duty simply means the defendant has fallen below the standard of care expected from someone undertaking the activity concerned
(Vaughan v Menlove) . In that sense a test is an objective one. In Blyth v Waterworks Co it was provided that, negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do... Thus, in the scenario in hand it is most likely the court will establish a breach of duty based on two reason; First any reasonable person would expect employers to provide their employees with protective equipments, secondly employers also failed to perform their statutory duties as provided by the Ministry of Employment.
On the other-hand employers seem to argue that their omission should not amount to negligence because even they had provided it, Tom wouldn’t have used it, because many employees objected to the use of it due to discomfort reasons. Nonetheless this argument will not succeed because the law provides that ‘a reasonable person would only neglect the risk if he had ‘valid’ reasons for doing so. In the scenario in hand, the fact that many employees considered the equipment to be uncomfortable is not a valid reason for the employers not to provide such equipments because a reasonable person should have weighed his duty oto his employees, as well as his statutory duty against employees comfort. A reasonable conclusion can be drawn that, employers failure is unjustifiable since a reasonable person would have initiated for the use of such important equipments. Further their argument is also flawed by the fact that, the Practical Guidance on Assessment and Selection of welding ppe (PERSONAL PROTECTIVE EQUIPMENT FOR WELDING AND ALLIED PROCESSES: PRACTICAL GUIDANCE ON ASSESSMENT AND SELECTION, section 11 (3)), provides that ppe should fit each worker properly without causing undue discomfort . In that sense, initially employers have a duty of finding such ppe which would not cause discomfort. Therefore any discomfort cannot be used an excuse for not providing extra ppe.
The third issue that court will consider in order to draw a conclusion on whether or not Tom’s employers had been negligent is the issue on causation, i. e whether the breach caused damage to Tom. The starting point is the ‘but for test’ which provides that....if damage to C would not have occurred ‘but for’ D’s negligence the negligence is a cause of the damage (Barnett v Chelsea& Kensington HMC) . This test aims at excluding all things which have no bearing to the damage (University of London External Programme). In that sense, in order for C’s claim to succeed it must be proven that without D’s negligence, the loss wouldn’t have occurred. In the scenario in hand, it is somewhat problematic to satisfy the ‘but for test’ because there are two probable causative agents to Tom’s deafness i. e the natural cause (illness), and employers negligence. In that sense, the court will then rely on other approaches regarding ‘multiple causes’ to establish negligence. Nonetheless based on Wilshere (Wilsher v Essex Area Health Authority)where health authority failed to detect that the catheter had been wrongly inserted and therefore the premature baby received too much oxygen. In this case the health authority’s failure was held to be negligent despite presence of some other factors which could cause such damages. Further, in the scenario, it is almost obvious that, the damage was not too remote, as any reasonable person will be able to know that exposure to excessive noise will lead to hearing impairments.
In summation, employers’ failure to equip Tom with protective instruments could also be regarded as negligence, but the question remains on whether that negligence is sufficient enough to allow Tom to receive damages. That is the question of proving causation, whose burden lies on Tom. The issue of proving causation will be considered in the next part of this essay.
b) In the scenario in hand the onus of proving causation seems to be somehow difficult due to the following reasons; uncertainty of facts as to which is the cause of the damage, and the issue of multiple defendants (employers). In that sense all the issue will be dealt with one at a time in order to draw a good conclusion.
For proof of causation, the claimant must be able to establish that on the balance of probabilities, there is a causal link between the breach of duty and his damage. It is insufficient only to point a possible link (Barker v Corus) . However for policy reasons; fairness, justice, in some circumstances court may reduce the evidential burden on the claimant (Cook v Lewis). In our scenario it is very difficult to come with one definite conclusion which points out that the industrial noise was the cause of deafness, because; Tom had a disease which could also be a cause, also there is no scientific evidence to prove on balance of probabilities between the two competing causes which one could be the sole one.
Nonetheless, In order to prove causation, first Tom has to show that on the balance of probabilities that the defendants’ breach of duty was a material cause of the injury (all or nothing approach) . In that sense it is not enough to prove that the defendants breach has increased the risk of the damage to occur. This principle will be used in this case as opposed to the one in Fairchild /McGhee on (material increase in risk) because in the scenario we are not certain as to which of the two is the cause of the damage. Applying this principle to the facts, it can be seen that, the outcome are rather detrimental or harsh on Tom’s side because in the fact there is nothing to show that industrial noise was a material cause of the damage. In order to satisfy the balance of probability test, 51% of the damage(hearing impairment) must have been caused by employers’ negligence (failure to protect workers from excessive noise)
Nonetheless, since it is difficult to satisfy the above test on the balance of probabilities because of lack of evidence, Tom might however succeed in his claim by using the principle in Bonnington Castings v Wardlaw in relation to cumulative causes. In Bonnington Castings it was established that... where the inadequacies of medical science mean that the relative potency of the causes cannot be established, C merely has to establish that D’s breach of duty was a ‘material’ contribution. In that sense, Tom can claim that industrial noise was material contribution to his hearing impairments by providing two reasons; firstly he can argue that during his employment period his hearing capacity kept on deteriorating reaching to 50% at the time of his retirement. This can highly be caused by excessive level of noise, because even the Government through Ministry of Employment has provided some duties on employees to protect their employers from excessive noise, knowing that such level of noise can lead to deafness. Further support can be found in case law, where in Bailey v Ministry of Defence , where despite the existence of two causes; pancreatitis, D’s negligent, to C’s weakened state, the court however held that causation was established by simply proving that D’s negligent contributed materially to the overall weakness. Thus, since excessive noise contributes to the overall hearing impairment, causation can thus be established.
Further support can be found in the exception of the general rule established in Wilshere. In Fairchild the HL explicitly provided that in certain situations especially in cases where employees suffer grave harm at the expense of their employers who owed the them a duty of protecting them against that very harm and failed to do so, then the stringent rule on balance of probabilities will be exempted .
