Asbestos-Related Injury Litigation

Author:Anthony Finegan
Position:BA (Hons), LLB, Currently a candidate for the degree of LLM (Mode A) in UCC, Winner of the Bank of Ireland Gold Medal Prize for best essay of the 6th Edition
Pages:1-13
Cork Online Law R eview 2007 1
Finegan, Asbestos –Related Injury Litigation
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ASBESTOS-RELATED INJURY LITIGATION
Departure from Traditional Tests for Causation as a Result of Scientific
Uncertainty in Asbestos-Related Injury Litigation
Anthony Finegan*
A INTRODUCTION
Asbestos-related injury litigation raises a number of difficulties for
claimants. In particular, claimants suffering from mesothelioma, an
indivisible cancerous disease that occurs in the lining of the lung (pleura) or
the lining of the abdominal cavity (peritoneum), face an insurmountable task
in satisfying traditional tests for causation. The aim of this article is to identify
the reason for this difficulty and examine the solution that has developed in
England. The possibility of applying s.11(3) of the Civil Liability Act 1961 will
also be explored. Finally the effect of relaxing the traditional tests for
causation will be considered. It is also worth noting, from the outset, that
although emphasise will be on asbestos-related injury litigation, the same
principles may apply to other indivisible injuries with multiple uncertain
causes.
B EPIDEMIC LEVELS OF LITIGATION
The U.S.A. was the first jurisdiction to experience an explosion in
asbestos-related injury litigation. It is reported that 600,000 claims, were
filed up to December 2000, against 6,000 defendants in 75 of the 83
industries recognised in the U.S.A. with compensation amounting to $54
billion, up to 2002.1 The burden of litigation has resulted in an increasing
number of defendants filing for bankruptcy. Globally, estimates suggest that
asbestos-related injury litigation will cost $200 billion.2 Commentators
frequently refer to a ‘mesothelioma epidemic’3 predicting a total of 250,000
deaths in Europe from mesothelioma.4 In Great Britain, diagnosis of
mesothelioma has increased by twelve-hundred percent between 1968 and
2001. It is also estimated that in Britain there will be 65,000 deaths between
2002 and 2050.5 In Ireland, preliminary estimates are sketchy, but it is
thought that the trend is consistent with European levels. Reports dictate that
there were 77 incidences of mesothelioma between 1994 and 1998. This
represents an annual swell of 14.4% from previous periods. This number is
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* BA (Hons), LLB, C urrently a candidate for the degre e of LLM (Mode A) in UCC, Winn er of
the Bank of Ireland Gold Medal Prize for best essay of the 6th Edition.
1 Rand Institute for Civil Justice, Asbestos Litigation , Costs and Compensation: an int erim
report, (Santa Mon ica: Rand, 2002).
2 “Outlandish Claim s”, The Economist, (25/5/2002) Vol. 363 Issue 8274, at p. 75.
3 J. Peto, et al “The European Mesothelioma Epidem ic” (1999) 79 British Journal of Ca ncer
666.
4 Ibid.
5 J.T. Hodgson, D.M . McElvenny, A.J. Darnton, M.J. Price & J. Peto, “The expected bur den of
mesothelioma mo rtality in Great Britain from 2002 to 2050” (2005) 92 British Journ al of
Cancer 587 at pp. 588-589.

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