Gachon University School of Medicine, Seongnam, Korea
Copyright © 2016 The Korean Society for Preventive Medicine
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The burden of proof of causation between an unlawful act and damages incurred generally lies with the alleged victim in tort cases. However, source substances released by corporations often cause damages indirectly to victims, through air or water pollution, and even modern science fails to explain all the mechanisms that lead to pollution. Consequently, in most cases it is extremely difficult or even impossible to scientifically prove each and every link that constitutes the causal relationship between the act and the damage. Therefore, requiring victims to present rigid scientific evidence of the causal relationship in environmental lawsuits may in effect lead to a complete denial of judicial remedies. Meanwhile, corporations have better technological and financial resources to conduct inquiries, and they have a higher likelihood of attempting to cover-up their negligence. As a result, from the viewpoint of equity, it would be fair to conclude that, when certain toxic substances released by corporations reaches plaintiffs’ property and damage on the property occurs, a corporation shall not be relieved of its liabilities unless it presents evidence of the harmlessness of the substances released at its source and that such substances did not cause damage to the inflicted objects (emphasis added).
In cases where a patient as victim files a lawsuit against a pharmaceutical company claiming liability for damages on the grounds that he/she was infected by the injection of a blood product contaminated with HIV virus, the burden of proof shall be relieved if the plaintiff successfully proves all of the following: ① The patient did not show any symptom of infection before receiving the blood product produced by the pharmaceutical company; ② The infection took place after the injection had been carried out; ③ There is a substantial probability that the blood product had been contaminated with the virus. Relieving the patient’s burden of proof in order to allow the patient to claim compensation for damages by presuming causation between the infection and the defective blood product manufactured by the pharmaceutical company or its negligence would contribute to meeting the goal of our compensation claim system, which has adopted fair and equitable compensation as its guiding principle. The substantial probability of virus infection, even though there is no clear scientific evidence, can be inferred from multiple factors such as the proximity of timing between the use of the blood product and the infection, statistical relevance, the manufacturing process of the product, the medical characteristics of the virus infection, and the accuracy of the diagnosis of the virus infection conducted on the source blood (emphasis added).
“In order to prove that a risk factor has the probability to cause a non-specific disease, the following must be established: 1) the rate of contraction of the non-specific disease is significantly greater in a group exposed to the risk factor than in a group that is not exposed to said risk factor, and 2) the time and amount of exposure of an individual in the group [that was exposed to the risk factor], the time of the occurrence, the health conditions before exposure, life-style habits, the changing state of the disease, and family history (emphasis added).
“After conducting a contrasting epidemiological investigation between a group that was exposed to a risk factor and a group that was not, one must prove the probability that the non-specific disease occurred due to the risk factor: 1) one must prove that the rate at which the non-specific disease is contracted in the group exposed to the risk factor is considerably greater than the rate for the group not exposed to that factor, and 2) an individual in the group must additionally prove the length of time and the amount of exposure, the time of the occurrence, the health conditions before exposure, living habits, the changing state of the disease, family history, etc. (emphasis and numbers added).
CONFLICT OF INTEREST
The author has no conflicts of interest associated with the material presented in this paper.