"i'm Not Half the Man I Used to Be:[closesmartdoublequote] Exposure to Risk Without Bodily Harm in Anglo-american and Israeli Law

• Publication year: 2013

"I'm not Half the Man I Used to Be:[closesmartdoublequote] Exposure to Risk without Bodily Harm in Anglo-American and Israeli Law

Benjamin Shmueli

"I'M NOT HALF THE MAN I USED TO BE": EXPOSURE TO RISK WITHOUT BODILY HARM IN ANGLO-AMERICAN AND ISRAELI LAW

Benjamin Shmueli^*

Abstract

This Article addresses the fundamental and age-old question of defining harm in tort law. It follows the case of the trapped Chilean miners, among others. It challenges, in a comparative view, the common notion that no compensation will be awarded for tortious conduct that produces no actual loss or damages because pure risks that have not yet materialized are not considered a harm.

Can damages be awarded by the risk creator to a plaintiff who was exposed to a medical risk or to radiation or toxins and whose risk of becoming ill or suffering harm has thus been tortiously increased, even though he cannot demonstrate present bodily harm? Some scholars view increased risk as an "incomplete" tort entitling victims to partial damages proportional to the increase. Others view the exposure as a "complete" tort in itself. I examine each of these rationales against the overarching goals of tort law. Examination of these rationales will serve as a practical and theoretical basis for discussing the harder question: how to compensate healthy plaintiffs in cases of potential future harm where the plaintiff is not the person he used to be following the exposure to the risk, but cannot point at a substantial bodily harm. I examine various categories of "healthy" plaintiffs in order to test the limits of these

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rationales. Through these categories, I address the key question of whether compensation is merited, and if so, what its proper scope is.

I show a practical difference between viewing increased risk as an "incomplete"or"complete" tort with respect to certain categories of plaintiffs. The discussion leads to a critique of Anglo-American and Israeli case law, which is not prepared to properly recognize the need for compensation in some of the categories.

Hence, this Article proposes an innovative approach based on different categories of healthy plaintiffs, examined against the two alternative theoretical rationales and focuses on the need to compensate the healthy exposed people that are in a state of "latency" or incubation, whose lives have been changed as an outcome of this continuous risk. The Article offers various qualifications and parameters for the suggested acknowledgment of risk as harm.

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Introduction..............................................................................................990

I. Complete or Incomplete Tort? Two Alternative Rationales for the Theoretical Basis of the Increased Risk Doctrine..................................................................................998

A. The Increased Risk Doctrine: General Overview and Examples....................................................................................998
B. Incomplete Tort and Some Compromise on Factual Causation: Partial Compensation Proportional to the Attributable Fraction ................................................................ 1001
C. Complete Tort: Increased Risk as a Form of Harm in and of Itself.......................................................................................... 1006

II. "Healthy Risk-Injured Plaintiffs" as a Test Case between the Rationales .............................................................................. 1009

A. General Overview..................................................................... 1009
B. "Healthy but Fearful".............................................................. 1010

1. In Theory............................................................................ 1010
2. The Extent of Damages....................................................... 1011
3. In Practice: Criticizing Anglo-American Law.................... 1012

C. "Healthy—but with Expenses "................................................. 1015

1. In Theory............................................................................ 1015
2. The Extent of Damages ....................................................... 1017
3. In Practice.......................................................................... 1019

D. Healthy Plaintiffs Whose Risk Was Increased on a One-Time Basis ("Truly Healthy")........................................................... 1020
E. Healthy Plaintiffs for Whom the Event that Exposed Them to Risk is Ongoing and the Disease May Possibly be Incubating Inside Them ("Healthy - Latency")......................................... 1023

1. In Theory............................................................................ 1023
2. The Proposal: Acknowledging the Need to Compensate According to the Complete Tort Rationale, but Only According to Four Parameters and Barriers..................... 1026
3. The Extent of Damages According to the Complete Tort Rationale ............................................................................ 1037
4. In Practice.......................................................................... 1039

F. Intermediate Cases in Israeli Law ............................................ 1039
G. Summary................................................................................... 1049

Conclusion................................................................................................1050

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Introduction

This Article addresses the fundamental and age-old question of defining harm in tort law¹ and challenges the common notion that, in general, no compensation will be awarded for tortious conduct that produces no actual loss or damages,² since pure risks that have not yet materialized are not considered a harm.³

On August 5, 2010, the San Esteban gold and copper mine in Chile collapsed and thirty-three miners went missing.⁴ For seventeen days there was no news of them and they were thought to be dead, until a drill searching for air pockets punched a hole through to the underground room the men were in.⁵ They were trapped 2,300 feet underground.⁶ Until then, they were cut off from the surface.⁷ It was estimated that it would take four months to rescue them.⁸ A communications connection was established, and each miner was able to speak.⁹ All reported feeling hungry but well, with the exception of one man with a stomach problem.¹⁰ Even so, doctors and psychological experts tried to safeguard the sanity of the miners by implementing a plan that included keeping them informed and busy.¹¹ "The shelter, a living-room-sized chamber big enough to hold all thirty-three men, [was] far enough from the landslide to remain intact, and the miners [could] also walk around [below the tunnel] where the rocks fell."¹² Kathleen Kowalski Trakofler, a research psychologist at the National Institute for Occupational Safety and Health, says that while

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research on this topic is limited, there may be some general behavioral responses:

Over time, individuals are likely to feel crowded, sleep-deprived, irritable, bored, and restless . . . . [O]ther noxious stimuli include loss of privacy while toileting, odors . . .as well as [the] absence or presence of noise by any operating machinery or life support systems. Low levels or lack of lighting provides no normal cycling of light to trigger the body's natural circadian rhythms. . . . Common symptoms . . . include anxiety, withdrawal, aggression, hostility, depression and irrational and impulsive behavior.¹³

The men, ages nineteen to sixty-three, survived underground for more than two months.¹⁴ Some of them revealed in interviews that the hardest time was the seventeen days before the rescuers discovered them because they were actually waiting for their deaths.¹⁵ One of the miners said the ordeal had taken him "to the limit" and that now he just wanted to be alone.¹⁶ He also said, "[t]he confinement was terrible . . . . The first 17 days were a nightmare. Then everything changed. But the hardest thing was to be down there. Buried for two months."¹⁷

Medical experts say that "[r]espiratory conditions are at the top of the list of problems the miners are likely to face . . . [due to] the poor air quality said to exist in the mine," alongside "[f]ungal infections, including athlete's foot . . . jock itch," dental problems, and eye problems.¹⁸ Also, dehydration coupled with a lack of sunlight could cause problems with muscles, bones, and other

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organs.¹⁹ In the days after rescue, it is common to experience sleep disturbances, anxiety attacks, and nightmares.²⁰ Symptoms of post-traumatic stress disorder ("PTSD") and anxiety may appear shortly after the rescue: for example, entering a dark room or a mine could spark anxiety and phobic reactions, even in a miner who is seen as physically fit and psychologically strong.²¹ These symptoms are hard to treat.²² The miners may also experience feelings of guilt and depression that stem from interactions between individuals down in the mine during what was one of the most stressful times in their lives.²³

Some thought that the media frenzy would cause unnecessary stress to the miners and their families upon their rescue.²⁴ Others have suggested that the rescue process may have been more anxiety inducing than the time spent in the mine.²⁵ The rescue process was intense. It involved traveling out of the mine in a "tight, spinning tube" of only twenty-one inches in diameter.²⁶ The trip took up to twenty-five minutes.²⁷ Finally, the miners may face trouble reinserting themselves back into their family units, and that may result in depression in many cases.²⁸

A short time after the rescue, the miners seemed to be doing quite well.²⁹ This is the first time that miners have been rescued after spending so many days underground; therefore, not all potential harms and effects are known or

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anticipated.³⁰ Nick Kanas, a University of...