INTRODUCTION

JUDICIAL RISK REGULATION

It is the government’ s responsibility to protect its citizens against health and environmental risks. Governments have to enact regulations that set out the legal responsibilities of the relevant private actors – such as producers, developers of a technology, employers – with respect to risks. Moreover, these rules should ideally be enacted and enforced before the materialisation of risks.

Lately, the Dutch government has been (legally but also socially) accused of failing in this task. Its response to several risks would have been inadequate, such as the risk of asbestos exposure, (shale) gas extraction, Q fever (bacterial infection associated with cattle), tobacco smoke and greenhouse gas emissions. Also for the future, some scholars – and even the government itself – expect that the government will face difficulties in regulating the risks of new technologies, such as biotechnology and nanotechnology, and hence in protecting citizens against such risks.

As a reaction to these threats from alleged governmental failures, judicial regulation of health and environmental risks is being sought by litigants, and the results are entering the Dutch private law system. Although such risk-regulatory lawsuits might have different claimants, defendants and outcomes, they share three characteristics:

The complementary role that civil courts currently play in regulating risks can also be seen in three forms.

First, claims for damages against the state and private actors may be sought as a mechanism to redress the negative effects of (alleged) inadequate risk management, including the failure to regulate at all. Such claims have typically failed when brought against the state. For example, in 2013, a Dutch worker whose work had involved asbestos contracted mesothelioma, a cancer caused by exposure to asbestos, and lodged a claim for damages against the Dutch state.