Mesothelioma - Obs B

Front 1

Barnett v Chelsea

Back 1

Established 'but for' test - doctor refused to treat patients - would have died anyway

Front 2

Lord Hoffman

Back 2

'but for' should be some prescribed causal link between the act and injury for which one is liable - if but for did not exist flood gates would open

Front 3

Four Key problems

Back 3

 difficult to assign responsibility because can’t trace origins – >
 Leaves victims uncompensated Treasure Et Al ‘unpleasant and fatal disease’. >
 Rapidly becoming an epidemic. >
 ‘But for’ test in Meso cases is contrary to the principles of tort law.

Front 4

McGhee v National Coal Board (1973)

Back 4

Because of difficulty courts allowed to find D responsible for the injury if it "materially increased the risk of his employee contracting an industrial disease"

Front 5

McGhee v National Coal Board (1973) - Harsh Approach

Back 5

Claimant could never prove cause of injury thus failed to satisfy but for test and D should not escape liability because of inconclusive medical evidence

Front 6

Fairchild v Glenhaven Funeral Services (2002)

Back 6

allowed courts to circumnavigate ‘but-for’ test and treat a lesser degree of causal connection as sufficient - claimant can recover full compensation - from any employer - regardless of inability to show disease caused by particular employer

Front 7

Test changed from McGhee to Fairchild

Back 7

"breach of duty materially contributed to causing the claimants disease by materially increasing the risk of disease being contracted"

Front 8

Fairchild reasoning based on?

Back 8

Based on fairness "any injustice for duty a breaking employer outweighed by injustice denying a redress for victim"

Front 9

Stapleton

Back 9

Fairchild allowed claimants to leap evidence gap

Front 10

Stein (2003)

Back 10

In agreement Fairchild development constitutes an improvement in the law from perspective of optimal deterrence and corrective justice - however is it too excessive?

Front 11

Barker v Corus (2006)

Back 11

Challenged Fairchild impact - created insurance friendly approach - Barker introduced apportionment and held D's only liable for proportionment of injury on length of employment - harsh effect many left uncompensated-

Front 12

Lord Rogers against Barker

Back 12

Highly unfair to not compensate because science can't prove original source of fibre

Front 13

What did Barker remove?

Back 13

Fairchild joint liability principle

Front 14

s3 Compensation Act 2003

Back 14

Brought in after intense lobbying - reversed Barker decision

Front 15

s3 Compensation Act 2003

Back 15

provides a tortfeasor liable to make full compensation claim