The Difficulty of Proof

The connection between, for instance, lung cancer and exposure to asbestos is hard to establish. For instance one of the main causes of this type of cancer is smoking.

This uncertainty creates problems for establishing liability and therefore for offering financial compensation to the victims of lung cancer. In the Netherlands as in other countries this problem was, until recently, approached in terms of all or nothing. If the chance that the lung cancer was provoked by asbestos exposure was real, and one could state that asbestos was at least the principal cause of the cancer, the victim would receive full compensation. Otherwise the affected would get nothing at all. However, a form of proportional compensation has developed under Dutch Jurisprudence. This proportional approach means that victims receive compensation for damages proportional to the chance that the lung cancer was caused by exposure to asbestos. The first ruling in which this proportional approach was employed came from the cantonal judge of Middelburg on February 1 1999.

Similar approaches have been found in a number of countries since then. A landmark case in the UK came in 2003 with the Fairchild decision. Although this was on the more complex disease of mesothelioma, the point remains that asbestos has been challenging the courts in a number of ways, and continues to do so. The case did not introduce proportional compensation, but did allow compensation where, in any other context, a court would not have been satisfied that it had been proved that the defendant caused the victim’s injury. The only country in the survey with a completely different approach was France, which first allowed a victim to sue the state for failing to protect him or her and second set up a special fund to compensate the victim without litigation.