A relatively recent and developing area of personal injury law involves injuries from toxic substances – such as mould in apartment or office buildings, food toxins, pharmaceutical products, and pesticides or other industrial chemicals. Although claims for illness from these substances are often difficult to prove, they can have widespread implications for employers, landlords, food and chemical product manufacturers, mining and construction industries, and many other businesses.

The phrase ‘toxic tort’ describes the judge-made legal basis for claiming compensation for injuries or losses caused by toxic substances. Toxic tort law developed with the increased production, use, transportation, and disposal of hazardous substances.

(In addition to tort law, industry-specific legislation and regulations set standards for managing hazardous substances and compensating injuries that arise from them – such as building codes, landlord-tenant laws, mining laws, or workers’ compensation schemes.)

Plaintiffs in toxic tort cases face particular difficulties in seeking compensation for their injuries. The legal principles on which the plaintiff must rely were developed before health concerns regarding toxic substances arose and before medical research supported these concerns. The legal framework is best suited for cases where there is a single and easily identifiable cause of the injury (such as a car accident causing acute injuries).

A claim that health problems were caused by a hazardous substance is less suited for this framework. It is difficult to prove in court that exposure to the substance caused health problems, particularly where the illness does not develop until years after the exposure, such as cancer, where exposure to the substance, such as pesticides in a community, was minimal but over a long period of time, where there are other possible causes for the illness, or where medical evidence suggests a correlation between the exposure and the illness but does not establish legal proof.

Furthermore, tendering medical and scientific evidence to prove causation in court is very expensive. In Canada, the compensation awarded may be minimal in comparison to the costs associated with proving the claim. As a result, there have been few claims of this nature in Canada.

Workers’ compensation legislation also reduces the number of court claims by legislating compensation for injuries arising in the course of employment. In certain circumstances, this scheme avoids causation issues altogether by presuming the health problems were caused by chemical exposure at work. For example, if a worker is diagnosed with acute respiratory illness after exposure to high concentrations of fumes, causation will be presumed. Causation is generally not presumed where illness arises after lower level long term exposure, but there are exceptions, such as exposure to asbestos dust.

Toxic tort litigation is more prominent in the United States than in Canada, and the compensation awarded for personal injuries may be significantly higher. However, the cross border nature of environmental hazards may lead to greater toxic tort litigation in Canada. This past December a Washington state resident living near a lead and zinc smelter located in British Columbia filed a class-action claim against the Canadian mining company on the basis that pollutants from the smelter caused breast cancer and other illnesses.

This developing area of personal injury law serves to remind a wide range of industries to strictly follow health, safety, and environmental standards to reduce health risks, and to maintain adequate insurance to properly compensate anyone injured in the event of an accident involving a toxic substance.

The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.