This advice will consider the rights and liabilities of the parties in the tort of negligence. Jacqueline (J) may have claims against her first employer (E1), her second employer (E2), and her consultant.
For a claim in negligence to succeed, J must establish that her employers owed her a duty of care, that they breached this duty, and that this breach caused her lung cancer.
Duty and Breach
It is well-established that an employer owes a duty of care to its employees to provide a safe place of work (*Wilsons & Clyde Coal Co Ltd v English* [1938] AC 57). This includes providing adequate facilities. E1 failed to provide proper washing facilities, which is a breach of health and safety regulations and therefore likely a breach of their common law duty of care. By contrast, E2 provided washing facilities and advised J to use them. It is therefore unlikely that E2 has breached its duty of care.
Causation
The primary difficulty for J is establishing causation. J must prove on the balance of probabilities that the employers’ breach of duty caused or materially contributed to her lung cancer. The starting point is the ‘but for’ test: but for the breach, would the harm have occurred? (*Barnett v Chelsea & Kensington Hospital Management Committee* [1969] 1 QB 428).
Here, there are two potential causes of her cancer: exposure to coal dust and her heavy smoking habit. It is scientifically difficult to separate these causes. Where there are multiple potential causes, the claimant may struggle to satisfy the ‘but for’ test. In *Wilsher v Essex AHA* [1988] AC 1074, the House of Lords held that where there were several different possible causes of the harm, the claimant still had to prove that the defendant’s negligence was the cause on the balance of probabilities. J’s 15-year heavy smoking habit is a very significant alternative cause, which will make it extremely difficult for her to prove that the coal dust exposure was the effective cause of her cancer.
J might try to rely on the principle of ‘material contribution to injury’ from *Bonnington Castings Ltd v Wardlaw* [1956] AC 613, arguing that the coal dust made a non-negligible contribution to her disease. However, this case involved a single causal agent (silica dust), whereas here there are two distinct agents (coal dust and cigarette smoke). Courts are reluctant to depart from the ‘but for’ test in such circumstances, as seen in *Wilsher*. Therefore, J’s claim is likely to fail on the issue of causation.
Defences
Even if causation could be established, the employers would raise the defence of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. J’s heavy smoking would be considered a major contribution to her injury, and any damages would be substantially reduced. Regarding E2, her failure to use the washing facilities provided, despite being advised to do so, would also amount to contributory negligence, further reducing any potential damages from that employer.
J may also have a claim in medical negligence against the consultant for the loss of her vocal chords.
Duty and Breach
A doctor owes a duty of care to their patient. The issue here is the scope of that duty regarding the disclosure of risks. The standard is no longer governed by what a body of reasonable doctors would do (*Bolam v Friern Hospital Management Committee* [1957] 1 WLR 582). The case of *Montgomery v Lanarkshire Health Board* [2015] UKSC 11 established a patient-focused test. A doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment. A risk is material if a reasonable person in the patient’s position would be likely to attach significance to it.
The loss of vocal chords is a significant and life-altering consequence. It is highly probable that a reasonable person in J’s position would attach significance to this risk. The consultant’s failure to disclose this known risk is therefore a clear breach of their duty of care.
Causation
J must also show that this breach caused her injury. She must prove that, had she been properly warned, she would not have consented to the treatment. In *Chester v Afshar* [2004] UKHL 41, the court held that causation could be established if the claimant would have delayed the procedure to seek a second opinion, even if they could not prove they would have refused it outright.
However, a significant problem for J is that the treatment was her “only chance of survival”. A court may conclude that, even if she had been warned of the risk to her voice, she would have consented to the treatment anyway to save her life. If she would have proceeded regardless, then the consultant’s failure to warn did not cause the injury, and the claim will fail. This is a difficult factual question, but the gravity of her underlying condition makes it challenging for J to prove she would have acted differently.
In summary, J’s claims against all parties face serious obstacles. Her claim against her employers is very likely to fail on causation due to her significant smoking history. Her claim against the consultant, while demonstrating a clear breach of duty under *Montgomery*, may also fail on causation because she likely would have consented to the life-saving treatment even if fully warned of the risks.
References
- Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
- Bonnington Castings Ltd v Wardlaw [1956] AC 613
- Chester v Afshar [2004] UKHL 41
- Law Reform (Contributory Negligence) Act 1945
- Montgomery v Lanarkshire Health Board [2015] UKSC 11
- Wilsher v Essex Area Health Authority [1988] AC 1074
- Wilsons & Clyde Coal Co Ltd v English [1938] AC 57
