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.