Causation, Liability and Toxic Risk Exposure

ABSTRACT Persons injured as a result of exposure to toxic or carcinogenic substances are seldom able to recover damages from those who are responsible for the exposure. Tort law requires proof of causation, and causation is often unprovable because of long latency periods, because of the relative infrequency of the injuries and because many of the injuries among the exposed population are the result of other factors. A number of proposals for modifying the legal causation requirement to allow those who create hazardous risks to be held liable for the injuries that materialise are considered and found inadequate. A proposal to treat risk exposure itself as an injury for which compensation under private law is possible is also considered and ultimately found incoherent. The paper concludes by arguing for a public law solution, modelled on criminal law, but providing compensation for victims.