Dr. Emmanuelle Lemaire, Lecturer in Law, University of Essex
Serial health risks are increasing in occurrence and have the capacity to affect large numbers of people living in different countries. Thalidomide, contaminated blood, Diethylstilboestrol (DES), asbestos and Bovine Spongiform Encephalitis (BSE) are among some of the most well-known examples of serial health risks damaging human lives, but the recent Covid-19 outbreak reminds us that such risks have always existed, primarily in the form of epidemics. Yet, the legal treatment, in civil liability, of personal injury resulting from serial health risks often lacks clarity not only because serial health risks have diverse origins, but also because they can trigger different regimes of civil liability. Given their increasing importance and this lack of clarity, I devoted my PhD thesis to the comparison of how the French and English legal systems responded to serial health risks in civil liability. I concluded that while these two legal systems are facing similar legal challenges from a civil liability perspective, they have not always responded in a similar manner. In fact, I argued that their differences of approach highlight unreconcilable views as to the conception of civil liability, its role and its underlying objective. My analysis also led me to conclude that despite these differences, the legal treatment of victims of serial health risks remained unsatisfactory in both legal systems due to unjustifiable inequality of treatment. The following post will provide a summary of the key-findings from my PhD thesis.
My interest in comparing the legal treatment of serial health risks in French and English civil liability stemmed from a theme that I uncovered while I was writing my master’s dissertation in France. At the time, I was working on issues of proof of causation in civil environmental liability in French and English law and discovered that, besides environmental cases, other cases raised similar issues of proof of causation.
Yet, these cases involved risks with diverse origins: the risks were occupational (asbestos, brick dust, mechanical vibrations, etc.), technological (electromagnetic waves, nuclear radiations), pharmaceutical (thalidomide, contaminated blood, DES, PIP prostheses, metal-on-metal hip prostheses, anti-hepatitis B vaccine, pertussis vaccine, etc.), food-related (BSE-contaminated beef), consumer-related (tobacco), industrial (Round-up) and environmental (pollution). More importantly, these cases triggered the application of different civil liability regimes: liability for defective products, nuisance, and negligence (employers/employees, producer/consumer, etc.).
Nevertheless, despite these important material differences, they also presented common features: claimants always suffered from diseases, a specific type of personal injury, and as a result, all cases were concerned with risks to human health; they were all connected to the widespread use of products and substances, therefore raising the number of victims to potentially catastrophic levels; finally, all involved serial damage, a legal concept sometimes used by continental legal scholars to refer to a type of damage that affects a number of people spread in various locations and at different times but connected to a common origin.
In summary, these cases were all dealing with health risks leading to serial damage which I will refer to as ‘serial health risks’. Given their common features, it was no surprise to observe that they often raise similar issues for the application of civil liability.
As I already mentioned, proof of causation is often a crucial issue in these litigations because our understanding of aetiology of diseases is generally fraught with significant gaps in scientific knowledge. As a consequence, the existence of scientific uncertainties is particularly challenging to the success of tort claims. Additionally, when numerous plaintiffs are similarly affected by the same substance or product, courts are likely to face a flood of tort claims. Large cohorts of claimants put a strain on the justice system, thereby leading to question whether the tort system is the best way forward in dealing with compensation, and if so, how it copes with large numbers of claimants.
While this area of litigation has become increasingly important both in the number of cases and in monetary value (potentially multi-millions pounds litigation), legal scholars have mostly purported to follow a sectoral approach, devoting their analysis to one legal issue at a time (causation, collective redress, etc.). I believed that a more comprehensive study of the interactions between serial health risks and civil liability was needed in order to bring clarity into this complex area of law and that drawing on the legal experiences of both the French and English legal systems could be beneficial to inform on how similar issues of civil liability were approached in legal systems with different legal traditions.
Through this comprehensive analysis, I sought to investigate how personal injury resulting from serial health risks was treated by civil liability in both legal systems.
Choice of jurisdictions and methodology
The French and English legal systems have been chosen because they have different legal traditions (civil law vs common law) and were influenced by European Union law. More importantly both legal systems were good comparators because they have had to deal with the same issues of serial health risks at a similar point in time using the same scientific knowledge available, examples being contaminated blood, asbestos or BSE. For this reason, the comparison of French and English responses to this new problem seemed particularly apposite.
To conduct my research, I borrowed from both functional and contextualist methods of comparison. When looking at the practical issues connected to the application of civil liability in the context of serial health risks and the solutions developed in French and English law to address them, I used a functional method through a careful examination of French and English jurisprudence. However, I believed this approach to be limited: while the solutions adopted in both legal systems could be functionally equivalent, they could nonetheless be justified by different reasons. Hence the real divergences between legal systems could well remain hidden if my analysis was limited to a functional approach. I therefore complemented my comparative work with an analysis of political and social contexts to identify the underlying reasons and objectives behind the adoption of solutions in French and English law.
My main findings can be summarised as follows:
- The comparative analysis revealed that French and English law are moving towards improving the protection of victims’ interests in the context of serial health risks.
For example, both legal systems introduced compensation schemes to provide victims of certain serial health risks with expedient compensation under more flexible requirements than that of civil liability. Such schemes have benefited victims of contaminated blood, asbestos, vaccines (France and England), Diethylstilboestrol (DES), Mediator, Depakine (France), and BSE (England). Furthermore, French and English legislators have introduced strict liability regimes in sectors of activity where serial health risks could materialise with the aim to facilitate defendants being held legally liable. The introduction of the nuclear liability regime and the liability for defective products are the most seminal examples (chapter 3).
Similarly, I show that collective redress mechanisms have been introduced in the French and English legal systems not only to cope with large cohorts of claimants seeking compensation through judicial process but also as a means to restore the ‘balance of power’ between plaintiffs (private individuals) and defendants (often large companies) through allowing individual plaintiffs to aggregate (Goliath v. Goliath). I demonstrate that the conditions to launch group litigations are designed to deal with victims of mass torts which include victims of serial health risks, although I also identified difficulties in both legal systems which impede the efficacy of these mechanisms in practice.
Finally, the analysis of case-law provided me with clear evidence that proof of the traditional requirements of civil liability (in particular causation) has sometimes been adapted to allow victims of serial health risks to succeed where they should have normally failed (chapter 5 to 10). Once again, this is indicative of the importance given to victims’ interests from a civil liability perspective.
- However, despite these converging evolutions, I conclude that the treatment of serial health risks in French and English civil liability remains fundamentally different.
For example, the comparison of French and English compensation schemes in the context of serial health risks reveals that while French schemes are often designed as an alternative compensation mechanism to the tort system, English statutory schemes are engineered as a supplementary compensation mechanism to the tort system. In other words, where French compensation schemes generally compete with the tort system, English statutory schemes are created as a last resort mechanism and can only be actioned when all else fails. This important divergence underlines the fact that the French legal system readily separates compensation from civil liability in order to promote compensation while the English system continues to see the tort system as the primary route for obtaining redress. Similarly, while legislators on both sides have introduced strict liability regimes, their number remains limited in England while in France they continue to grow. This suggests a willingness by the French legal system to move from fault-based liability to strict liability. In contrast the English legal system is reluctant to depart from the fault principle to compensate personal injury resulting from serial health risks (chapter 3).
The application of tort law rules to situations of serial health risks is another striking example of the different approaches taken by the two legal systems. In chapter 2, I developed a detailed typology of serial health risks based on the level of scientific knowledge and distinguished ‘known’, ‘suspected’ and ‘unknown’ risks. In chapter 5 to 10, I used this typology to examine the judicial treatment of serial health risks in French and English civil liability. In French law, I found that the conditions of civil liability are consistently adapted, and that proof of these requirements are facilitated to ensure that the victims could obtain compensation, regardless of whether the situation is one where the risk is unknown, suspected or known. In other words, French law favours victims’ compensation in all situations of serial health risks. Conversely, the position is much more nuanced in English law: the less knowledge that is available as to the existence of risk, the less likely it is that relaxation of tort law will be accepted (chapter 6 to 10). As a result, proof of causation has been adapted where risks are known but not where risks are either suspected or unknown.
- I argued that the aforementioned differences are not simply differences of degree between the legal systems. Rather they show irreconcilable views as to the role played by civil liability in the context of serial health risks.
When considering the balance between the protection of bodily integrity (claimants’ interest) and the protection of economic freedom (defendants’ interest), the French legal system took the clear view that the protection of bodily integrity is to be favoured in the context of serial health risks. To this effect, civil liability is simultaneously declining due to other compensation mechanisms emerging, and yet strengthened due to the introduction of strict liability regimes, collective redress mechanisms and relaxation of tort law conditions. These conflicting trends can all be explained when regarding the underlying goal being pursued in French law, which is ensuring that victims of serial health risks obtain compensation. The interests of defendants are therefore systematically sacrificed.
The English legal system has made another choice. While the protection of bodily integrity is undeniably important, it is not a sufficient reason, in and of itself, to sacrifice the defendants’ interests. Other reasons are needed to support a relaxation of the traditional rules of civil liability and examination of English case law reveals that judges are careful to evaluate conflicting interests to determine which one should be given precedence. This explains why the more scientific uncertainty there is with regards to the existence of the risk, the less willing English law is to relax the traditional rules of tort law. This approach reveals that English law is much more concerned than French law with the need to strike an appropriate balance between the protection of bodily integrity and the protection of economic freedom.
- Finally, I found the legal treatment of serial health risks to be unsatisfactory in both France and England, albeit for different reasons.
If, as my analysis suggests, the French legal system is overly concerned with the compensation of victims of serial health risks, then the arrangements currently in place are not satisfactory, especially when considering the solutions crafted through legislature. French legislators have succumbed to the temptation to develop solutions on a sector-by-sector basis which can lead to victims being treated differently simply because serial health risks have different origins. For example, French legislators introduced collective redress for victims of personal injury in the health sector but not in relation to the food industry. As a result, thalidomide-type victims could benefit from group litigations but not BSE-type victims. I found this sectoral approach to be sorely lacking and difficult to justify.
The English legal system has favoured an approach whereby victims of serial health risks are treated differently depending on the level of scientific knowledge available. I argued that this approach can be justified and is more rational than that adopted in French law which differentiates victims according to the origin of serial health risks. Yet, the English approach is not without problems because it can also lead to victims of serial health risks being treated differently for no valid reason. English judges are trying to preserve a balance between conflicting interests (bodily integrity vs economic freedom) which results in relaxation of traditional rules to have limited applicability. In order to ensure limited applicability, English judges are drawing subtle distinctions between cases. For instance, the applicability of exceptional rules of causation (chapter 9 and 10) depend on whether the situation is one of alternative or cumulative causation, whether there is one or multiple noxious agents at play, whether the disease is divisible or indivisible. Hard cases often challenge the practicality of these distinctions and reveal that, as is the case in France, victims of serial health risks can be treated differently with little rationality behind the solutions. The worst example is linked to victims of asbestos where the solutions depend on whether such victims are suffering from mesothelioma, a specific disease linked to asbestos exposure, or not.
This comparative analysis was designed as a starting point. It aimed to provide a clear picture of the current position of how French and English law are dealing with the fallout of serial health risks from a civil liability perspective. Shortcomings have been identified in both legal systems which need to be addressed in future work to ensure that victims of serial health risks are treated more equally. The recent Covid-19 outbreak, probably the biggest serial health risk that our generation had to face, serves to reinforce this point.
Essential workers have put their lives on the line to allow for essential activities to continue during the lockdown. Healthcare professionals and carers primarily, but also supermarket workers, train and bus drivers, firefighters, postmen and delivery men amongst many others have had to work, sometimes in very close proximity to the general public, in order to deliver these essential services. Some of them, as we know, have died due to Covid-19 therefore raising the question of whether the State should step in to provide some type of compensation to essential workers and their bereaved families. It would appear that, once again, not all key workers have been treated the same. In particular, healthcare professionals and carers have benefited from special arrangements both in France and in England, a “privilege” that was not extended to other key workers.
While the nature of the work conducted by healthcare professionals and carers undeniably put them at a high risk of contamination from Covid-19, the same could be said of all key workers who have had to work in contact with the public. Why then should some essential workers be treated better than others? This latest example shows that unless we are planning on rethinking our general approach to serial health risks, the shortcomings previously identified in my work will be further aggravated.
This post originally appeared on the British Association of Comparative Law Blog and is reproduced here with permission and thanks.