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

• Author: Owen Mcintyre
• Position: B.A., LL.B. (N.U.I.), College Lecturer, Faculty of Law, University College Cork
• Pages: 196-223

LIABILITY FOR ASBESTOS-RELATED ILLNESS:

REDEFINING THE RULES ON ‘TOXIC TORTS’

OWEN MCINTYRE*

I. INTRODUCTION

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.

9[1994] 1 All ER 53 (H.L.).

10 Fletcher v. The Commissioners of Public Works in Ireland,Supreme Court, unreported, 21

February2003.