가습기살균제 피해구제를 위한 특별법상 인과관계 추정조항과 “위해 상당 기여(Material Contribution to Risk)” 기준

Causation can be seen as being proving based on substantial probability under Article 5 of the Special Act on Remedy for Damage Caused by Humidifier Disinfectants(hereinafter “the Special Act”). The article has been revised such that the causal connection can be presumed when an epidemiological association between exposure to humidifier disinfectants and diseases after the exposure is ascertained. According to the current tort jurisprudence, the injured party (plaintiff) must prove ‘general causation’ and ‘individual causation’, respectively. When the damage in question is a non-specific disease, the plaintiff must prove the durability, degree, pattern of exposure, and the time on disease incidence, as well as the results of epidemiological studies. In doing so, it is necessary to prove the likelihood that the risk factor caused the disease. Through epidemiological studies, we could find only the general association between a specific factor and the occurrence of a specific disease. As a result, scholars are generally cautious about using epidemiological studies as proof of individual causation. However, under the revised article 5 of the Special Act, causation can be presumed by proof of an epidemiological association. How can we accommodate this revised provision into the current legal thinking that epidemiological studies are nothing more than statistical data? I would like to understand the revised provision not merely as a result of legislative policy, but as the principle of distributing the burden of proof between the parties concerned based on justice and fairness. Where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by the said person unless he shows that there existed some other cause. The material increase in risk was treated as equivalent to a material contribution to injuries. The implication of the case was significant as it meant that a claimant need not demonstrate that the defendant’s actions were the “but for” cause of the injury, but instead that the defendant’s actions materially increased the risk of injury. The material contribution to risk test can be justified in exceptional circumstances, where applying the traditional but-for test to exclude claims of the plaintiff is contrary to the sense of fairness and justice.