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Victims of Asbestos Exposure?

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-Tort Law Essay-

How does and how should tort law deal with the victims of asbestos exposure?

"Despite conflicts about tort reform in general, there is a consensus among scholars and judges on one point: Asbestos Litigation presents a tort problem with a unique history, present state and future course."

In effect, most victims of asbestos exposure seek a remedy under personal injury litigation, dealt with by the law of tort, from their former employers for their particular 'injuries'. Claiming for injuries arising from asbestos exposure is quite singular for many reasons. Mainly, that these injuries arise only 25-30 years after the exposure to that toxic substance, which is not harmonious with the more simple rules of common law tort system of dealing with disputes involving more instantaneous, straightforward injuries flowing from another individual's negligence.

Additionally, the way asbestos manifests itself makes compensation under tort law even more problematic. The different 'degrees of seriousness' of the injury caused, all entail various scientific issues, endless legal conflicts of proof and causation, and uncountable practical difficulties relating mainly to cost and time. Consequently, the unique characteristics of asbestos exposure have caused asbestos victims to be confronted with overwhelming barriers to their recovery of damages for their injuries, which have been the foundation of long debates and conflicts in England about how the law of tort should deal with the victims of asbestos exposure.

In this essay, we will start by discussing how the law of tort deals with the victims of asbestos exposure in England, and secondly we will examine different suggestions that would ameliorate the way tort law deals with victims of asbestos exposure.

Injuries arising from asbestos exposure, vary widely in seriousness, and depend on the length and levels of exposure. The most serious disease that arises from asbestos exposure is Mesothelioma, which can only develop from asbestos exposure. More and more victims of Mesothelioma seek a remedy under the tort system, for their employer's breach of duty, in failing to 'protect' them from exposure to asbestos.

The House of Lords has shown some readiness to somewhat adjust the ordinary rules of causation to deal with cases of negligent exposure to toxic substances during employment, such as asbestos, especially for the more serious diseases caused by the latter such as Mesothelioma.

The latest House of Lords dealing with the above issue is Fairchild . Several victims brought a claim against several defendants, for negligently exposing them to asbestos. This case presented a number of problems that have always arisen and will continue to arise in Mesothelioma cases, such as the scientific impossibility of proving whether the disease was caused by the inhalation of a single fiber, or the cumulative and longer exposure to asbestos. As a result, claimants who had worked for several employers were faced with the impossible task of identifying which defendant caused the Mesothelioma.

This was contrary to the ordinary rules of causation, under the law of tort of having to establish a causal link between the defendant's negligence and the victim's injury. Indeed, because the different employers all exposed the victim to asbestos, it was scientifically impossible of proving which employer's breach of duty (to take reasonable care to prevent exposure to asbestos), on the balance of probabilities, caused the Mesothelioma.

But "where the state of medical and scientific knowledge means that there is no practical and realistic prospect of a claimant proving the causal link required by the established legal approach" , the House of Lords was confronted with two decisions: Either, to deny the claimants any remedy under the tort system because they do not satisfy the ordinary 'but for' rules of causation under tort law or to compensate them nonetheless, by trying to circumvent these rules.

Fortunately, the House of Lords did in fact find in favor of the victims, by accepting that since the negligence of all the employers materially contributed to the risk of contracting Mesothelioma, they were to be held jointly and severally liable, and all provide damages to the claimants, the House of Lords effectively recognized that "justice was to be done to the appellants in Fairchild" . Indisputably, denying the victims any form of redress or compensation simply based on the fact that they could not identify which employer's negligence caused their fatal disease, would have been unfair as their 'combined' negligence was effectively the cause of the claimants' Mesothelioma, and each of them did increase the risk of victims contracting an asbestos related disease.

Furthermore, in 2006, The House of Lords was confronted with another Mesothelioma case, Barker v Corus , where the same problem arose of identifying which employer's negligence caused the disease. Nevertheless, the House of Lords took a different view regarding how Mr. Barker should be compensated. They ruled that it would be fairer and less burdensome on employers, if liability were divided proportionally between each employer; according to the period and length they negligently exposed the claimant to asbestos. As Lord Hoffman stated, "In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates."

However, as efficient as that appeared theoretically, in practice this decision played out to be extremely unfair, as Mr. Barker was only able to recover a small portion of the damages from one employer. This acted extremely harshly and unjustly on the victims of Mesothelioma, as the majority was never able to recover for the full extent of the damages, they were clearly rightly entitled to under the law of tort.

Hence, in 2006 under extreme pressure from various groups of people, workers and their families, campaigns etc...who were all put at an extreme unfair disadvantage by the Barker ruling which undermined deserving compensation to Mesothelioma victims and their families, Parliament introduced the Compensation Act 2006 , effectively reversing the Barker decision (s.3 of the Act) and restoring justice to the victims of Mesothelioma .

Furthermore, another problem, which has arisen in asbestos related claims, is a less serious yet very problematic issue of pleural plaques. This 'injury' is mainly problematic because of its nature, it is an asymptomatic disease, which does not



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