Asbestosis and Fear of Cancer in the United States: What are the Lessons?
Flinders Law Journal, Forthcoming
19 Pages Posted: 24 Oct 2010 Last revised: 23 Jun 2012
Date Written: October 24, 2010
It is argued that the U.S. Supreme Court standard in Norfolk & Western R. Co v Ayers -- its 'genuine and serious fear' standard for FELA-covered asbestosis sufferers developing cancer -- is an unnecessarily subjective one which allows compensation recovery by undeserving plaintiffs.The standard leaves the door ajar to a broader class of fear of cancer (FOC) claims and this should be avoided by other common law jurisdictions such as Australia. Australian courts should maintain their bar on FOC claims that are not founded on a mental disease in the form of a generalized anxiety disorder (GAD). This article considers the merits of adopting the path of most US state supreme courts and developing a 'two disease' recovery process i.e. a general tort claim for asbestosis causation is followed by a second claim for cancer (and the fear and anxiety suffered) only if that cancer actually manifests itself. The article concludes that the Australian approach is preferable i.e. insisting that patients show 'normal fortitude' or else, to recover compensation, demonstrate that fear that an asymptomatic (pleural plaques) or non-fatal condition (asbestosis) will develop into cancer has caused their mental disorder.
Keywords: fear of cancer, asbestosis liability, FELA, Ayers, Hensley, cancerphobia
JEL Classification: K13
Suggested Citation: Suggested Citation