Causal Uncertainty in Tort Law: The Special Case of Mesothelioma

This chapter addresses the issues of causal uncertainty in tort law arising in situations where there are two or more potential causes of the victim's damage, but there is insufficient evidence to determine which was in fact the cause. These have been highlighted in recent times by litigation relating to cancerous mesothelioma attributable to exposure to asbestos. In Fairchild v Glenhaven Funeral Services the UK House of Lords moulded a remedy by boldly departing from the established principles of causation; but further high-level judicial decisions and legislative interventions have proved necessary in order to deal with its ramifications. This chapter charts those developments in English law before contextualising the legal issues arising in historical and comparative terms, and highlighting both the still unresolved questions and the anomalies that have ensued from the piecemeal and ad hoc interventions in this area by both judiciary and legislature.