Liability for asbestos-related illness: redefining the rules on ?toxic torts'

AuthorOwen Mcintyre
PositionB.A., LL.B. (N.U.I.), College Lecturer, Faculty of Law, University College Cork
In Ireland, the Central Statistics Office reports that some 77,000
people suffer from work related illness in the course of a year, of
which some 4,400 suffer respiratory problems.1Though further
details are not provided, it is safe to assume that a significant number
of such work-related respiratory illnesses arise from exposure to
asbestos and it is widely expected that the number of claims for
asbestos-related illness in Ireland will increase sharply in the coming
years.2It is estimated that approximately 3,000 people die in Britain
annually from asbestos-related diseases and the U.K. Health and
Safety Executive predict as many as 10,000 deaths annually by
2025.3Currently, between one and two thousand of these die from
mesothelioma, increasing from 154 in 1968 to 1009 in 1991.
Indeed, some commentators refer to a ‘mesothelioma epidemic’,
which is predicted to kill some 250,000 men in Western Europe over
the next 30-35 years.4Indeed, it has been estimated that the total
cost of asbestos claims worldwide will eventually reach around
US$200 billion.5
In recent years, litigation over illness resulting from exposure to
asbestos has led to the progressive development and clarification of
the application of common law principles to claims relating to
environmental injury. The joint burdens of establishing the necessary
causal link between an activity and an injury and of establishing that
the injurysustained ought to have been reasonably foreseeable have
196 [4:1Judicial Studies Institute Journal
*B.A., LL.B. (N.U.I.), College Lecturer, Faculty of Law, University College Cork.
1See Buckley,A.J., “Causation and Compensation in Asbestos Related Disease Claims” (2002)
Commercial Law Practitioner,191.
2See for example, The Irish Times,23 June 2003.
3See McIntyre, O., “Liability for Asbestos-Related Illness” (1996) 4 Irish Planning and
Environmental Law Journal,83 at 84.
4Peto, J., Decarli, A., La Vecchia, C., Levi, F. and Negri, E., “The European Mesothelioma
Epidemic” (1999) 79 British Journal of Cancer,666.
5See The Economist,25 May 2002, p. 81.
traditionally proven very onerous for plaintiffs claiming for so-called
‘toxic torts’. Also, the issue of liability for psychiatric illness caused
by anxiety over past exposure to asbestos raises a number of difficult
issues. However, the UK and Irish courts have, of late, taken a more
innovative and progressive approach to establishing both vital
requirements for a finding of liability and to defining the limits of
liability in relation to psychiatric illness.
In particular, the House of Lords has recently ruled that the ‘but
for’ test for causation6need not apply in mesothelioma claims
entered by employees who suffered periods of exposure with more
than one employer and where medical science cannot prove who
among a number of employers caused the condition.7The decision
effectively creates joint and several liability whereby the claimant
will be entitled to recover damages in full against each defendant.
Also, the English Court of Appeal has ruled in 1996 that liability
arose in respect of exposure to asbestos resulting in mesothelioma
despite the fact that the disease was not known to medical science at
any time during the relevant period of exposure.8The Court reached
this decision by employing a broad concept of injuryfor the
purposes of establishing reasonable foreseeability. This development
is significant in light of the emphasis placed on the requirement of
foreseeability by the House of Lords decision in Cambridge Water
Co. v. Eastern Counties Leather.9Finally, the Irish Supreme Court
has recently clarified the position in relation to liability for
psychiatric illness arising from unfounded anxiety over negligent
exposure to asbestos dust, finding, as a matter of policy, that no
liability arose in the absence of physical injury.10
2004] Liability for Asbestos-related Illness :
Redefining the Rules on ‘Toxic Torts’ 197
6The court must be satisfied that ‘but for’ the acts or omissions of the defendant, the claimant
would not have suffered the loss or damage.
7Joined cases Fairchild v.Glenhaven Funeral Services Ltd.; Fox v.Spousal (Midlands) Ltd.;
Matthews v. Associated Portland Cement Manufacturers (1978) Ltd. and others[2003] 1 A.C.
32 (H.L.(E)). See also Morgan, A., “Inference, Principle and the Proof of Causation” (2002)
N.L.J. 1060.
8Unreported, 17 April 1996. See further McIntyre, O., “Liability for Asbestos-Related Illness”
(1996) 4 Irish Planning and Environmental Law Journal, 83.
10 Fletcher v. The Commissioners of Public Works in Ireland,Supreme Court, unreported, 21

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