Asbest, gezondheid en veiligheid : een rechtsvergelijkende analyse van de ontwikkelingen in het aansprakelijkheidsrecht naar aanleiding van de asbestkwestie

As is shown by the asbestos problem, the legislator and the courts still mainly operate ex post. An important question therefore is how the law can deal with the regulation of new health risks in the future and thus, how an adequate balance between the precedence of economic interests and the precedence of social health and safety can be determined ex ante, in order to prevent new social health problems, and a new booming of tort law, from arising. In this respect it is important to stress that he causation of damage, even of foreseeable damage, as such is not wrongful. The causation of foreseeable damage only becomes wrongful, if insufficient precautions were taken. The question then is: how much precaution is required and, more specifically, what is the criterion to determine how much precaution is required in a concrete case? In my view, an answer to this question must predominantly consist of the separation of the regulation issue (including the enforcement of regulatory measures) and the compensation issue, so that both questions are no longer interlinked. The asbestos jurisprudence has shown that tort law apparently is flexible enough, given new or changing external developments or bottlenecks, to generate new solutions for damage problems that would be out of its reach when applying regular tort law, but also that the degree to which tort law is allowed room to develop such solutions and thus move outside its own parameters, strongly depends on the presence and of scope of other compensation mechanisms (e.g. social security). The existence of social security can temper the development of a social compensation issue. In order to retain the rationality and realism of tort law and social security law, regulators should therefore be prepared to formulate new answers in order to deal with new social risks (viz. the answer of the industrial accident and occupational disease insurance at the beginning of the last century in order to deal with the old social risks), with an eye to exercising a tempering influence on the use of tort law