Nanotort Liability at Common Law

Abstract

This chapter explores the possibility of NT-induced injuries leading to toxic tort liability at common law. It outlines the manner in which the Courts have historically dealt with claims for occupational personal injuries in cases involving limited scientific knowledge and scientific uncertainty. Departing from the decision of the House of Lords in McGhee v National Coal Board, it follows the adaptation by judicial precedent of the principle of causation under the conditio sine qua non rule. This rule is the most basic evidentiary burden of proof which must be overcome by the Plaintiff in a personal injuries action for compensatory general and special damages. However, in two paradigmatic evidential gap case scenarios, which are plaintiff indeterminacy and defendant indeterminacy, causation can become the most difficult evidentiary hurdle for the plaintiff to overcome. This chapter provides salutary insight into the freedom of the Courts to adapt to these scenarios by lowering the evidentiary burden of proof in the interests of social justice and broader social policy. We reflect on the suggestion that a new toxic tort of “no risk”, motivated by a general chemophobia and judicial sympathy for deserving plaintiffs, has already been created, which dispenses with the concept of causation as a mechanism for allocating responsibility for harm and effectively collapses firstly, the orthodox conceptual division between factual and legal causation and, secondly, causation into fault. If so, and notwithstanding the existing scientific uncertainty surrounding the consequences for human health and the environment of exposure to nano materials (NM), the existence of some scientific evidence has highlighted the risk of occupational injury. It could be argued in the endorsement of a plaintiffs’ claim that this evidence renders the said injury foreseeable. Accordingly, this creates significant risk assessment and risk management challenges for NM stakeholders particularly for NM manufacturers and distributors because it imposes on them a duty to take all risk minimisation measures possible to mitigate their potential exposure to acute and chronic NM-related personal injuries claims as a pre-emptive precautionary measure in the event that claims do arise. Should a mass toxic tort scenario arise, it will ultimately be in the legal arena that the sustainability of the technology will be determined.