First Class Undergraduate Tort Law Essay Example

First Class Undergraduate Tort Law Essay Example

Here is an example of a first class tort law essay written by an undergraduate law student at a leading UK university.

‘It is, of course, one of the functions of tort law to compensate victims of personal injuries. However, the rules of tort law establishing the conditions which a victim must meet in order to recover compensation exclude many victims of personal injuries from the protection of tort law. Moreover, even victims who can satisfy those conditions may face many practical difficulties, resulting from the way the tort system operates , in recovering any or all of the compensation to which the rules of tort law entitle them’ (Peter Cane)

The ‘substantial risk’ test is one of the conditions that make it particularly difficult for the victim to establish negligence. This is because the burden of proof lies on the claimant in establishing that the injury caused by the tortfeasor was ‘substantial’ in the eyes of a ‘reasonable person’. The difficulty of this condition is best illustrated in the case of Bolton v. Stone where the risk of the claimant being struck by a cricket ball was held to be minute as only six balls had been hit out of the ground in around twenty eight years. The defendant’s inability to prove that the statistics presented a ‘substantial’ probability of the claimant being hit by the cricket ball in turn prevented them from claiming compensation, as the defendants were held not negligent in not taking any precautions since the risk was minute. Even more so, the tort law makes compensation difficult to claim by disallowing any other conditions but the ‘substantial risk’ test as the basis of proving negligence. For instance, Lord Reid maintains that once the first ball had gone out, it was “enough to make the respondents realise that someone may be injured”[1]. This exemplifies the restrictive nature of rules of tort and points to the exclusion of individuals from being able to claim compensation.

On the other hand, the sine qua non rule was relaxed in the case of Fairchild v. Glenhaven Funeral Services making it easier for the victim to claim compensation. Majority of their Lordships agreed on the issue that the sine qua non test should allow flexibility as the gaps in the medical evidence cannot yet establish causality. The House of Lords had relied on the judgment in McGhee v National Coal Board in that it could not be physically determined whether the claimant’s contraction of dermatitis was caused by exposure to the ‘innocent’ dust or the ‘guilty’ dust and it was thus maintained that the employer’s failure to provide a shower had increased the risk of the claimant contracting dermatitis. Similarly, in the present case of Fairchild, it could not be ascertained as to the source of the ‘guilty’ dust and consequently all employers were held liable in concert as they have increased the risk of the claimant contracting mesothelioma. The rationale for the ratio of the present case is that

“a culpable defendant does not escape liability and an innocent claimant is not left without remedy”.[2]

Following this line of argument, the House of Lords had relaxed the sine qua non test in favour of the claimant where it is sufficient to prove, on the balance of probabilities, that the employers had breached their duty of care by exposing the claimant to asbestos dust and consequently increasing the risk of the claimant contracting mesothelioma. To this extent, it cannot be justified that the conditions under the tort law exclude many individuals from compensation in mesothelioma cases; instead the claimant is given protection by the means of compensation as demanded by public policy.

The decision in Fairchild v. Glenhaven Funeral Services had made it easier for the victim to claim compensation when their Lordships decided that all employers who had contributed to the risk of the claimant contracting mesothelioma should be jointly and severally liable, which meant that the claimant could claim damages from either employer, disregarding their degree of contribution to the risk of mesothelioma.

However, come the ruling of Barker v. Corus, apportionment of contribution of risk to the defendant was introduced which, according to M.A. Jones, was to strike a

“fair balance between the interests of the defendants and those of claimants”[3]

In effect, this reform ushered in practical difficulties for the victim in claiming damages since they have to trace all employers in order to claim compensation, or issue multiple claims on a piecemeal basis, which in turn made the process of receiving compensation very onerous and time-consuming. Even worse, is the scenario where “negligent companies will have gone out of business”[4] given that it takes as long as 60 years for mesothelioma to manifest itself in an individual. The House of Commons proposed an amendment to the Compensation Act 2006 bill in the hope of restoring the post-Fairchild legacy of claiming full compensation from any culpable employer. One of the justifications, given by Bridget Prentice MP in the House of Commons debates was that “Barker decision makes claims much more difficult”.[5] The government’s immediate response to the unfairness of the rule established under Barker v. Corus was the passing of the section 3 of the Compensation Act 2006 where the defendants can no longer “apportion responsibility among themselves”[6]. Instead, the law will hold the responsible person liable

“in respect of the whole of the damage caused to the victim by the disease”[7].

Effectively, it can be seen that individuals who have satisfied the conditions needed to establish causation faced practical difficulties in recovering compensation following the judgment in Barker v. Corus. However, the government’s restoration of the post-Fairchild legacy of complete compensation has subsequently eliminated the practical difficulty of the delay between the claimant tracing every responsible employer and making piecemeal claims. The practical problem of failing to claim against an employer who is insolvent does not reduce the amount of compensation that the victim is entitled to receive as they only have to make a claim against one negligent employer in order to receive full compensation, and then the defendant can make claims in contribution against other employers. A conclusion can therefore be drawn that the government is moving the UK into the ‘compensation culture’ as far as mesothelioma cases are concerned by legally making it less problematic for the claimant to obtain compensation from negligent employers.

On balance, no final judgment can be made as to the applicability of Peter Cane’s view to tort law as a whole, as not all components of tort law in regard to personal injury have been examined. However, as far as the discussed issues are concerned, it can be maintained that mesothelioma victims now find it less problematic to claim compensation under the Compensation Act 2006, which permits compensation to be claimed on a all at once which in effect eradicates the practical obstacle of a time delay between claiming and receiving compensation. Vis-à-vis conditions, the issue is less clear-cut. The rules of tort law have demonstrated their compassion to victims, where causation cannot be established factually, through a relaxation of the ‘but for’ test where it is no longer necessary to prove factual causation but rather contribution to the degree of risk is now sufficient. Whereas, the ‘substantial risk test’ needed to establish a breach of duty, is still restrictive in its nature; awarding mostly more eloquent victims who can present a persuasive argument in establishing why the probability of defendant’s tort was ‘substantial’.

[1] Bolton v. Stone. [1951] A.C. 850 at p. per Lord Reid.

[2] Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 A.C. 32 at p. per Lord Bingham of Cornhill.

[3] Jones, M. A., 2006. Proving causation - beyond the "but for" test. Journal of Professional Negligence [online]. 22 (4), [Accessed 1st December 2007], p. 251-269. Available from World Wide Web: <>

[4]  .2006. The House of Lords and the mesothelioma conundrum. Journal Article-case comment [online]. 13 (10), [Accessed 3rd December 2007], p. 558. Available from World Wide Web: <>

[5] HANSARD (Commons). 11 July 2006, column 1246

[6] Compensation Act 2006: 2006 Ch. 29

[7] HANSARD (Commons). 11 July 2006, column 1246