Aspiring lawyer wins prestigious Oxford prize

ASPIRING lawyer and Ripon Grammar School sixth form student Tom Cave has won a coveted prize in a prestigious University of Oxford competition which attracted entries from all over the world.

Tom’s essay, which grappled with a complex legal issue, was selected from an exceptionally competitive international field to win a place at the elite university’s online legal workshops.

Corpus Christi College outreach officer Katharine Baysan said Tom’s entry in the legal reasoning competition was highly commended in a group of 84 particularly strong entries as a result of its strength of argument and clarity of writing.

“It clearly engaged with the materials and sought to understand their meaning and effect,” she said.

Tom, from Burton Leonard, studying psychology, biology and design technology at A-level, had to analyse, using legislative texts, how the law would apply to a case revolving around negligence for his entry to the Peter Cane Legal Reasoning Prize.

He decided to enter the competition in order to put recent knowledge gained after doing some wider law reading to good use: “I thought it would also be beneficial to gain some extra research skills which would be helpful for my extended project qualification (EPQ) and for life after school,” he said.

Tom has been examining whether Whole Life Orders are justified on the basis of human rights and criminal justice for his EPQ during lockdown: “Offenders can spend their whole life in prison without possibility of parole and I’m examining whether it’s acceptable to remove their hope as well as their liberty.”

The 17-year-old, who volunteers at the Ripon Walled Garden and is hoping to complete his Gold Duke of Edinburgh award this year, has also begun virtual work experience with international corporate law firm White & Case over lockdown: “Although the tasks are rigorous and difficult, they are hugely informative and give me an insight into commercial law which I hope to go into in the future.”

He has also entered the UK Supreme Court Student Writing Competition, this time discussing stop and search powers in the UK: “What caught my attention for this competition is the first prize, being to spend a day at the Supreme Court and have tea with a judge, though it’s unlikely I’ll win it!”

The biggest challenge he faced in the Oxford competition was learning about the law of tort and negligence he said: “This is a difficult area and having to applymy knowledge to a specific case to produce a justified and fair conclusion was certainly a challenge, it took a lot of reading.

“I was very surprised to be highly commended on my first essay. I put in as much effort as I could and I’m grateful it’s paid off.”

Ms Baysan added: “We were lucky to receive so many high-quality submissions this year, with the best entries focusing closely on the materials provided and comparing their different approaches to the difficult issue of multiple causation.”

Tom was presented with a certificate detailing his achievement at a prize-giving with Professor Peter Cane and invited to a law faculty taster day, in addition to the online workshops.

*The Peter Cane Prize was launched in 2017 and seeks to promote engagement with the ideas and reasoning behind law and legal studies, and particular to encourage those from all backgrounds and walks of life to apply to engage with the academic study of law. The prize is named after the distinguished lawyer, Professor Peter Cane, an internationally acclaimed scholar of legal theory, obligations and public law, and Corpus’ first dedicated law fellow.

You can read Tom’s entry below:

Fredericks v Vinogradoff’s Books

Mr Fredericks (F) seeks to bring a case in the tort of negligence after exposure to XYZ by three employers resulted in him getting Pollock’s disease. There are three possible defendants, but we are told F’s claim is against Vinogradoff’s Books (VB). This might come as a surprise given that Mr Fredericks signed a waiver of liability with VB, but it is likely that the waiver would be invalid according to the Unfair Contract Terms Act. If so and more than one of the defendants is liable then it is possible that Mr Fredericks can choose which one to sue as I will explore in my answer.

In this essay I will start by outlining the case against VB to show that the law in England does not give a clear answer. I will then look at the German Civil Code and the Principles of European Tort Law (PETL) to see what solution they suggest. Then I will say what outcome I think is right in the circumstances.

THE PROBLEM

To claim in negligence F must show three things. Duty of care is a legal obligation requiring a standard of reasonable care. Each of the defendants had a duty of care to the employees. The second element is breach of duty which exists when the defendant fails to meet the standard of care set out by law. We are told that both of these elements have been shown in F v VB. The third element is causation which is the main issue in this case. Causation requires F to show that VB caused F’s Pollock’s disease through breach of their duty of care.

As F is the claimant, he holds the burden of proof meaning he must prove on the balance of probabilities that the defendants caused the damage. This is not the same principle as the burden of proof in criminal cases which requires proof beyond reasonable doubt. The but for test is a widely used test in tort to determine if an action is the cause of an injury or loss. The test asks, but for the existence of X, would Y have occurred?

The but for test is commonly used to solve simple cases and it usually produces an answer, however it is more difficult if there are multiple defendants as in F v VB. With multiple defendants it is much harder for F to prove that either one of the defendants breached their duty as there is limited evidence of causation individually meaning the claimant wouldn’t be compensated unless an exception to the general rule was made.

F will find it hard to prove that but for VB’s actions F would have not got Pollock’s disease because ‘Pollock’s disease may even be caused by a single exposure to XYZ’. VB can argue that the two other bookshops might have caused the harm because we are told that both of them also had a duty to protect him and ‘at various times failed to do so’.

Should F suffer without compensation because he cannot prove it was VB that caused him to have Pollock’s disease? Or should VB suffer by having to pay compensation even though another employer might have caused the injury? Also it is possible that F kept lots of books as he has shown he likes them by working for three different bookshops so maybe XYZ was present in his own house. If so the case of Barker v Corus UK [2006] UKHL 20 is relevant whereby the issue was that the claimant (Barker) may have been responsible for his own injury as a result of his self-employment.

ENGLISH LAW

In English law sometimes the court makes exceptions to the but for test. When the but for test cannot be reasonably applied, an exception is used which is the ‘material contribution to harm’ test. If F had worked for the three book shops for 10 years each and each one materially increased the risk of him getting Pollock’s disease, it would be fair to share the liability equally between them. However similarly to our case, in the case of Fairchild v Glenhaven [2002] UKHL 22 the material contribution to harm test couldn’t be used because exposure to one fibre of asbestos across his working life with different employers may have caused a cancerous tumour and ultimately led to mesothelioma. So, an exception was made if a mesothelioma victim is able to prove that a particular exposure to asbestos occurred which created a materially increase in risk. The new exception requires the claimant to show that the defendant materially increased risk of harm.

This is problematic because it weakens the but for test and makes it less clear. It might also be unfair to the defendants because they are liable even if they can’t be proved to have caused the injury. Therefore, the judges in Fairchild tried to limit the materially increased risk of harm test to cases of mesothelioma. This is because the disease is incurable and because the employers profited from being lazy and so should take the blame.

So the material increased risk of harm could help F in his case against VB but it is not clear that the case would apply to exposure of XYZ instead of asbestos and to Pollock’s disease instead of mesothelioma despite both diseases being serious and ultimately fatal.

LEGISLATIVE TEXTS

To help decide the outcome of F v VB, Lord Levett might look at other countries to see what they have done. There are two legislative texts given and it is important to point out that these are legislative whereas in England negligence is decided by case law which has more flexibility.

The German Civil Code is a statute. PETL is a series of guidelines and principles set out by the European group on tort law that aim to harmonize European tort law. Both Codes recognise that the but for test is not always adequate, particularly where the cause is uncertain. PETL suggests special rules for concurrent causes, alternative causes, potential causes and uncertain partial causes (3:105). It is ‘uncertain partial causes’ that are most relevant in F v VB. But F won’t be able to show that ‘it is certain that none of them has caused the entire damage or any determinable part thereof’. In fact it is possible that any one of the three employers could have caused the entire damage. Therefore 3:105 would not help F.

The German civil code states that if more than one person has jointly committed a tort then each of them is held responsible for the damage, even if it can’t be proved which one caused the damage. This civil code is very similar to the Fairchild exception (aside from the amount of flexibility the German civil code has) in that the English common law is almost reversed to hold the defendants accountable for some damage that is likely they have contributed to. The word ‘contributed’ is very important. It’s defined as ‘to help cause/bring about’ which suggests the defendants aren’t directly responsible for the damage suffered but instead they are responsible for exposure to risk.

The German Code says each will be responsible, but it does not say if they will be wholly or partially responsible. So if it is difficult to divide the liability the German Code offers limited help. PETL says that in such cases liability will be solidary and several (PETL 9:101-9:102). In Barker v Corus it was decided that employers would only be liable for their own actions in mesothelioma cases, but this was reversed in the Compensation Act because it was unfair to claimants. If some of the employers had gone bankrupt, they would not get the full amount of money.

PETL is also useful in working out what happens if the claimant contributed to the risk of getting the disease. If F kept books, then he may have added to the risk. 3.106 says that F would bear the loss based on how likely it was that he caused it. This could be worked out depending on how long F had books likely to cause exposure to XYZ and how much time F spent at home compared with the time spent with the three employers.

WHICH OUTCOME IS PREFERABLE?

It is possible that Fairchild could be applied in the case of F v VB. The German Civil Code offers one reason for this and justice to the claimant is another. But if so, VB may not be 100% liable. In the case of Heneghan v Manchester Dry Docks Ltd [2014] EWHC 4190 where several employees were exposed to asbestos leading to lung cancer rather than mesothelioma, the defendants were only liable according of the amount of exposure during their employment with the company. Based on Heneghan, because F v VB doesn’t involve mesothelioma, if VB was found guilty, they would not be liable for 100% but only for a share.

However, it is not clear on the basis of the Fairchild exception that F could win against VB. This would mean extending Fairchild even further which the courts don’t like to do. In Gregg v Scott [2005] 2 WLR 268, the claimant, Gregg was negligently diagnosed with a benign tumour which was actually a cancer tumour. The house of lords then decided not to compensate Gregg as in the eyes of the law Gregg’s chance of survival was 42% before the doctor’s negligent mistake reduced his change of survival to 25%. This meant that Gregg’s chances of survival were low before the negligent act so the damage to Gregg was minimal. This decision reiterates the narrow application in such cases and how hard exceptions to causation are to prove.

Fairchild involved big companies and judges may have more resistance to finding small scale defendants such as doctors and even possibly bookshops liable. The decisions in the cases that I have looked at emphasise that sometimes ‘hard cases make bad law’. This is a phrase which means that extreme cases should not be used to make general laws because this will mean the law is uncertain and unclear and that judges might be more biased. Lord Levett could refuse to extend Fairchild in line with PETL which favours a clearer and more defined approach that stays true to the idea of fault-based liability.

Both outcomes would result in unfairness. In my opinion the defendants should bear the unfairness. They are the ones who breached their duty of care maybe due to them profiting from putting their employees at risk or even just laziness. They should have insurance so they will not be driven into bankruptcy. Moreover, the statement ‘hard cases make bad law’ really proves how hard it is to reach a justified conclusion in such complicated cases however I believe that my decision is the closest to justice that can possibly be achieved so I think that the English common law should make an exception for this case because morally it’s the right thing to do. This is especially so considering F will ultimately die from a serious disease that was not his fault. F should be compensated just as Fairchild was, despite this case potentially having a domino effect on related cases by extending the Fairchild exception beyond mesothelioma. Even though hard cases make bad law, it is completely necessary and appropriate in this case.