Scientific evidence and the toxic tort : a socio-legal study of the issues, expert evidence and judgment in Reay and Hope v. British Nuclear Fuels plc
Providing a socio-legal analysis of the issues, expert evidence and judgment in Reay and Hope v BNFL plc., the thesis offers an insight into the complexity of the toxic tort. Starting with an overview of the history of Sellafield, the thesis reflects on the scientific and epidemiological concerns surrounding the link between childhood cancer and nuclear installations. Drawing on scientific knowledge and epistemological considerations, the thesis moves on to the difficulties of verifying causation in science and the problems of establishing causation in law. Outlining the role of the expert witness and scientific expert evidence, the thesis proceeds with a case analysis, before broaching the thorny issue of judicial decision making and in particular, the difference between the 'discovery' and 'justification' process. Moving on to the Judgment in Reay and Hope, attention is given to the potential application of probability theory to the judicial decision making process. Lasting just short of one hundred days and including the testimony of numerous scientific experts, Reay and Hope marked new ground in a number of ways; it was the first personal injury claim to test the concept of genetic damage from radiation; the only time that a Queen's Bench Division Judge had been allocated a full-time judicial assistant; and one of the first trials to endorse a satellite video link for examination of international expert witnesses. As far as judicial management is concerned, the case was a forerunner in having Counsels' Opening Statements in writing in advance of the trial, as well as having written daily submissions of key issues from plaintiffs and defendants upon conclusion of oral evidence. The circumstances that led to the trial relate to events in excess of thirty to forty years ago when the fathers of Dorothy Reay and Viven Hope were employed by the Defendants and their predecessors (the United Kingdom Atomic Energy Authority) as fitters for the Sellafield Plant. Intrinsic to the litigation was whether paternal preconception irradiation caused or materially contributed to a predisposition to cancer leading to Dorothy's death from leukaemia and Vivien Hope's non-Hodgkin's lymphoma. As a consequence of the various statutory provisions, the Plaintiffs did not need to prove negligence on the part of the Defendants. In order to succeed the Plaintiffs had to prove on the balance of probabilities that radiation from Sellafield was a material contributory cause of the Plaintiffs' disease. The fundamental issue therefore was causation. In addition to the case analysis, two pieces of empirical research were conducted for the purposes of this thesis. The first, a Social Survey (consisting of thirty four questions) was circulated to 160 members of the Academy of Experts (quantitative research); the second, a letter, involved written communication with sixty five judges from the Queen's Bench Division of the High Court (qualitative research). Underlying this socio-legal case analysis are fundamental questions with regard to existing legal principles, liability and judicial decision making.