Toxic Tort Litigation: Diagnosing Its Onset in Ireland

• Date: 01 January 2016
• Author: Shane O'Neill

130

Toxic Tort Litigation: Diagnosing Its Onset

inIreland

SHANE O’NEILL

“Relief in the form of medical monitoring has developed in response to ‘a world in

which people regularly encounter environmental toxins, the eects of which are

largely unknown’”1

is article involves a critical analysis of medical monitoring2 as an independent

cause of action. First, the author will set out what is in fact encompassed in the

term “medical monitoring”. In particular, the author will illustrate how medical

monitoring litigation represents a novel attempt at reshaping the requirement of

damage in a tortious action. Secondly, the author will oer a cursor y review of

the arguments advanced in favour of and against permitting recovery for medical

monitoring, taking stock of their strengths and weaknesses. irdly, the author will

consider case law that has arisen in several states in the US. Notwithstanding the

infancy of medical monitoring litigation worldwide, the US serves as an example

of a jurisdiction housing courts now adept at handling this strain of litigation.

Moreover, the US proves to b e the only jurisdiction that has had sucient exposure

to such litigation, thereby rendering it the most suitable comparator to the Irish

experience. is article will conclude by touching on medical monitoring in an Irish

context. e author will consider the paucity of Irish case law on the subject, before

arguing that the time may now be ripe for the emergence of medical monitoring

litigation in Ireland, notwithstanding our ill-equipped courts. Developments in

US case law and in Irish legislation demonstrate the need for the Irish judiciary

to consider the meaning of “damage”. Such consideration is necessary to enable an

appropriate response to a potential proliferation of medical monitoring litigation

before the Irish courts.

Medical Monitoring Considered

Reference to medical monitoring litigation still prompts doubt. Fundamentally, it

concerns a traditional tort action. However, the requirement of damage is subject

to change, with the other elements comprising a tortious action remaining intact.

A claimant will still be required to establish a duty of care and a breach of that dut y.

However, the requirement of causation presupposes that some form of damage is

1 “Recent Cases: Supreme Judicial Court of Massachusetts Recognizes Cause of Action for Me dical

Monitoring of Tobacco Users” [2010] 123 Harv. L. Rev. 1771, p. 1771

2 is is referred to as medical monitoring litigation in the US and as toxic tort litigation elsewhere.

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Toxic Tort Litigation: Diagnosing Its Onset in Ireland 131

present and this is precisely where medical monitoring claims test the parameters

of the tortious action. Claimants in medical monitoring actions call for a broader

meaning to be aorded to the term “damage”. ey maintain that advances in

scientic and medical understanding necessitate this. ey further maintain that

such an approach does not mark a departure from traditional tort law but rather

a necessary reconguration. Medical monitoring claims will therefore almost

invariably arise in the context of toxic exposure. e claimant, on exposure to a

toxic substance, will not have suered damage in the ordinary sense. Instead, the

claimant will maintain that the exposure has put them at a greater risk of suering

damage in the ordinary sense. It is this “greater risk” that the claimant will seek to

equate with commonly understood “damag e”. e manifestation of this greater risk

is argued to come in the form of subcellular harm or physiological changes. If the

court then nds that the action is established, the damages sought to be recovered

are the cost of future periodic medical examinations intended to facilitate early

detection and treatment of disease caused by the exposure. Unsurprisingly, this

type of litigation has not found universal favour.

Ultimately, whether such litigation is to be accommodated will turn on what a

court understands to be “damage”. Interestingly, the rst occasion on which a US

court permitted medical monitoring recovery was one in which a particularly

broad understanding of “damage” was adopted. In Friends for All Children, Inc. v

Lockheed Aircrat Corp (FFAC),3 the US Court of Appeals District of Columbia

Circuit Court held that a need for medical monitoring constituted an injury

because “an individual has an interest in avoiding expensive diagnostic examinations

just as he or she has an interest in avoiding physical injury”.4 is initial position

was particularly pro-plainti; a need for medical monitoring alone was deemed to

constitute “damage” without the requirement of an increased risk of developing

injury. However, this position was to recede considerably in subsequent years.

Currently, Irish legislation5 in this area caters for a broad interpretation of

“damage”. Section 2 of the Civil Liability Act 1961 (an act introduced at the time

with a view to reforming the law on civil liability) provides that “personal injury”

includes any disease and any impairment of a person’s physical or mental condition.

“Impairment” alone is arguably amenable to encompassing a greater risk of damag e

such as subcellular harm or physiological change. However, the Irish courts have

yet to countenance pursuing this avenue, largely, in the belief of the author, owing

to the fact that the meaning of “damage” has to date been aorded insucient

consideration. A greater understanding of the causes and treatment of illnesses such

as mesothelioma and asbestosis and indeed a higher incidence of these diseases in

recent years must be met by a corresponding shi in approach by the Irish Courts.

3 Friends for All Children, Inc. v Lockheed Aircrat Corp (FFAC) 746 F.2d 816 (D.C. Cir. 1984)

4 ibid, p. 826

5 Civil Liability Act 1961 (1961 No. 41)

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