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Beck’s Risk Society Theory & the Demonstration that Negligent Creation of Risk Should Constitute

Using Ulrich Beck’s Risk Society Theory, this paper argues that the negligent creation of a risk of mesothelioma should constitute actionable damage in a tort claim. Taking Beck’s risk society model forward, it is suggested that the common law does not reflect the way modern society deals with situations of risk. The common law’s focus on tangible damage in negligence liability ignores a more complex reality in which to be at risk is to have suffered harm. Part I of this paper outlines the current legal position for claimants whom have been negligently exposed to mesothelioma. Part II interrogates Beck’s theory of risk society and argues that this provides an explanatory model for the shortcomings in common law. Part III examines the notion that being negligently exposed to risk of developing mesothelioma should be recognised as actionable damage in order to adequately protect mesothelioma victims. The final section of this paper highlights the potential limitations of the proposal and addresses each in turn, suggesting ways to overcome them. It is concluded that it is possible in law, and necessary in society, to recognise risk of developing mesothelioma as an actionable damage.

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