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UBC Theses and Dissertations
Uncertain risk, causation and precaution in toxic tort litigation Powell, Brenda Heelan
Abstract
The requirements for proof of causation determine the extent to which the general public will be exposed to risks associated with technological and scientific processes. If the requirements for proving causation are set too high, individuals will be less successful in protecting their rights to personal integrity and property. As such, the general public will be exposed to greater risk of harm by toxic substances associated with industrial activities. Conversely, technological and scientific advancement will be stifled by overly lax causation requirements which place an excessive burden on the producers and users of toxic substances. Due to the limits of scientific knowledge, the traditional requirements for proof of causation present an almost insurmountable barrier to success in toxic tort litigation. In particular, the risk associated with a particular industrial process may be unknowable in light of current scientific knowledge. The traditional causation requirements are unsuited to the situation in which scientific evidence can demonstrate a significantly increased risk of harm but cannot establish a conclusive causal link. The courts should expressly acknowledge the scientific uncertainty surrounding the risk associated with many industrial activities, and explicitly adopt a policy approach to dealing with this uncertainty. At one extreme, the courts may allow these processes to proceed until there has been clear demonstration of harm. At the other extreme, the courts may disallow these processes to proceed until there has been clear demonstration of safety. Falling between these extremes, the courts may allow cautious progress with these processes until there has been clear demonstration of harm or safety. The latter approach allows a balance between the social benefit of technological and scientific advancement and the individual rights to personal integrity and property. In the context of toxic tort litigation, this approach can be adopted by moving from a formulaic conception of causation to a flexible, policy sensitive conception which is guided by the notion of precaution. Ultimately, the courts' selection of an approach to dealing with scientific uncertainty is a matter of policy which should be resolved by consideration of the values in conflict in toxic tort litigation.
Item Metadata
Title |
Uncertain risk, causation and precaution in toxic tort litigation
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Creator | |
Publisher |
University of British Columbia
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Date Issued |
1999
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Description |
The requirements for proof of causation determine the extent to which the general public will be
exposed to risks associated with technological and scientific processes. If the requirements for
proving causation are set too high, individuals will be less successful in protecting their rights to
personal integrity and property. As such, the general public will be exposed to greater risk of
harm by toxic substances associated with industrial activities. Conversely, technological and
scientific advancement will be stifled by overly lax causation requirements which place an
excessive burden on the producers and users of toxic substances.
Due to the limits of scientific knowledge, the traditional requirements for proof of causation
present an almost insurmountable barrier to success in toxic tort litigation. In particular, the
risk associated with a particular industrial process may be unknowable in light of current
scientific knowledge. The traditional causation requirements are unsuited to the situation in
which scientific evidence can demonstrate a significantly increased risk of harm but cannot
establish a conclusive causal link.
The courts should expressly acknowledge the scientific uncertainty surrounding the risk
associated with many industrial activities, and explicitly adopt a policy approach to dealing with
this uncertainty. At one extreme, the courts may allow these processes to proceed until there
has been clear demonstration of harm. At the other extreme, the courts may disallow these
processes to proceed until there has been clear demonstration of safety. Falling between these
extremes, the courts may allow cautious progress with these processes until there has been clear
demonstration of harm or safety.
The latter approach allows a balance between the social benefit of technological and scientific
advancement and the individual rights to personal integrity and property. In the context of toxic
tort litigation, this approach can be adopted by moving from a formulaic conception of
causation to a flexible, policy sensitive conception which is guided by the notion of precaution.
Ultimately, the courts' selection of an approach to dealing with scientific uncertainty is a matter
of policy which should be resolved by consideration of the values in conflict in toxic tort
litigation.
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Extent |
6766389 bytes
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Genre | |
Type | |
File Format |
application/pdf
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Language |
eng
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Date Available |
2009-06-16
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Provider |
Vancouver : University of British Columbia Library
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Rights |
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.
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DOI |
10.14288/1.0077471
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URI | |
Degree | |
Program | |
Affiliation | |
Degree Grantor |
University of British Columbia
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Graduation Date |
1999-11
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Campus | |
Scholarly Level |
Graduate
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Aggregated Source Repository |
DSpace
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Item Media
Item Citations and Data
Rights
For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use.