The positions for the Final will be as follows:
Senior Appellant Hanif Mussa
Junior Appellant Thomas Restall
Senior Respondent Amelia Walker
Junior Respondent Can Yeginsu
The problem is:
In The House of Lords
White v Blackchapel BC
Mr Warren White was an employee of Small Chemicals from 1970 to 1990,
where he tested chemical compounds. At weekends he swam at his local
swimming pool, operated by Blackchapel Borough Council until 2001 when he
began to suffer from a rare disease, which is caused by exposure to a substance
known as Gelofin, which had been used by pharmaceutical companies in the
1960s, but whose risks were recognised in 1969 and had since been phased out.
Exposure to Gelofin on one occasion can trigger the disease that Mr White
suffers from. There were traces of Gelofin both in the chemical samples he
inspected at Small Chemicals and at the Swimming pool operated by
Blackchapel BC, but medical science is unable to determine when Mr White
contracted the disease. Mr White had been exposed to Gelofin throughout his
time at Small Chemicals, while Gelofin had been used in the swimming pool only
from 1997, when the new pool cleaner, Mr Allen, began to maintain the pools and
used Gelofin in spite of an express prohibition to do so by Blackchapel BC. By
the time Mr White contracted the disease, Small Chemicals had gone into
liquidation. He sought damages from Blackchapel BC.
At first instance the judge found that Small Chemicals' and Mr Allen's use of
Gelofin was negligent, but dismissed the claim on the basis that Mr White was
unable to prove the necessary causal link between the use of Gelofin by Mr Allen
and his illness, and moreover that Blackchapel BC were not vicariously liable for
Mr Allen's use of Gelofin, as he had acted outside the course of employment.
On appeal, writing for a unanimous Court of Appeal, Sir Richard Means MR
allowed the appeal. First, he held that the House of Lords in Fairchild v
Glenhaven Funeral Services Ltd [2003] 1 AC 32 expressed a general policy that
victims of illness should be allowed to claim from persons who have materially
increased the risk of illness, moreover that allowing Mr White's claim in this case
would be but a small incremental step from Fairchild. Second that Mr Allen's
negligence was in the course of employment because following Lord Denning's
speech in Rose v Plenty [1976] 1 WLR 141, Mr Allen was acting for the purpose
of carrying out his employer's business, viz maintaining the swimming pool.
Blackchapel BC appeal to the House of Lords on the following grounds:
1 The Court of Appeal erred in their application of Fairchild to the facts of this
case. The application of the causal rules in Fairchild is limited to very specific
circumstances, so as to prevent indeterminate liability. On the facts Mr White did
not fall within the category of protected claimants that Fairchild created. The
ruling of the Court of Appeal, if upheld, would impose a disproportionately high
burden on those defendants that are still solvent, in particular local authorities.
2 The Court of Appeal also erred in its application of Rose v Plenty - an
employee's acts fall outside the scope of employment when the specific act is
forbidden. A test based on the employee's intention to serve the employer is
uncertain and unworkable.