This quote is pretty telling: ‘Competition in this market does not appear to work well for drivers. We believe the focus that insurers have on gaining the competitive edge through raising their rivals’ costs means that drivers pay more than they need to for their motor insurance policies’.  From John Fingleton. CE OFT http://www.oft.gov.uk/news-and-updates/press/2012/44-12 This idea was also the main thrust of the introduction of my Lyons Davidson presentation in April this year. OFT have now realised that the reason it happens are structural rather than a result of collective action, but blaming insurers is compulsory in press statements these days. It is true that insurers gain more competitive advantage out of cost loading their competitors than they do out of being good insurers. A brief familiarity with economics leads to that conclusion. Compulsory 3rd party insurance has to develop that way if utility is to be optimised. It is inevitable and requires no collect

Several researchers have provided data on this question. These sources have been summarised by C La Vecchia and P Boffetta  and published in European Journal of Cancer Prevention (2012) Vol. 21(3) p 227-230. There is evidence from different sources that risk of mesothelioma is decided by the age of 30 in highly exposed workers. Exposure after that age doesn’t make a measurable difference to risk. Further exposure is harmless as far as mesothelioma is concerned. Popular orthodoxy would say this conclusion couldn’t be true but would proponents of such orthodoxy have measurable proof? La Vecchia and Boffetta didn’t find any. The result could become influential in the debate following the recent triggers ligation (Durham v BAI (run-off) etc). In this, it was found that injury-in-fact occurred at exactly 5 years prior to diagnosis. The temptation is to say, if already injured then further exposure is harmless. If so then causation policies in the preceding 5 years would no

It would seem from this research that 12-hour shifts are no more hazardous than 8-hour shifts. For the workers studied here it would seem that the 12-hour shift was preferred. Evidence from: MD Johnson et al. International Journal of Industrial Ergonomics (2001) Vol.27 p.303. Many industries and services have begun to introduce rotating 12-h schedules. There have been concerns that such schedules may influence the rate of occupational injuries, workers health, and factors that may contribute to stress. Established 8-hour shift patterns are already known to produce sleep disturbance. 412 employees were selected for the study, which was controlled and selected on the basis of accurate representation of work types and employment contracts. Response rates were over 80%. Results from before and after the change in shift pattern were compared. With respect to amount of sleep, the responses were significantly in favour of the 12-h schedule over the 8-h schedule. The study also indicated that

Early signs of action on liability for environmental damage – expanding on the Habitats Directive. Evidence from: MacAlister Elliott and Partners Ltd / Economics for the Environment Consultancy Ltd Study on the Valuation and Restoration of Biodiversity Damage for the Purpose of Environmental Liability. The report describes restoration as being either return to baseline or compensatory or a mixture of the two. Much depends on economic valuation techniques. The Radar report is available to subscribers: SK 1#6 9

Tackling work-related stress: a managers’ guide to improving and maintaining employee health and well-being. The new guide provides seven broad categories of management that could influence a person’s sense of well being. These are: • culture, • demands, • control, • interpersonal relationships, • change, • role clarity, and • individual factors such as training/skills/previous episodes. Evidence from: HSG 218. Comments While it may be that stress itself is the adverse outcome HSE seeks to address, stress is not in fact an injury. In short, standards for prevention of stress may have only a tenuous link with prevention of injury and as such would arguably be of little relevance to liability assessment. The experience of stress cannot be objectively measured, nor can it be precisely related to injury outcomes. The Radar report identifies several opportunities for defence should these guidance notes be used in evidence in claims. The Radar report is available to subscribers: SK 1#6 6 HSE

Diagnosis of pain problems depends very much on whether there is or ever has been tissue damage. Diagnostic methods will depend on causation assumptions and in turn, knowledge about causation depends on diagnostic method. the potential for circularity is apparent. In this setting, researchers attempt to identify diagnosis and causation. Evidence from: M Bennet. Pain. May (2001) Vol.92 #1-2 p 147 The diagnostic method in which variables were combined was found to have a sensitivity of 83% and specificity 87% with a corresponding positive predictive value of 86% and a negative predictive value of 84%. The test would tend to be used as evidence of tissue damage in RSI and back pain cases. The Radar report is available to subscribers: SK 1#5 2 Evidence from: C Meng et al. Journal of Rheumatology. June (2001) Vol. 28 #6 p 1271. Blood flow may be a response to or a cause of muscle pain. Either way its variation with MSD risk factor exposure would be of interest. This proof-of-principle study

Causation of mental breakdown has been accepted in some circumstances. Researchers usually study lower degrees of distress, and assume that causation would translate to the more serious outcomes. Causal direction and correction for personality traits is usually unclear. Even so, this is the research used by policy makers to define duty of care standards and  performance targets. Evidence from: J deJonge et al. Journal of Occupational and Organisational Psychology. Mar (2001) Vol.74 #1 p.29. The most interesting result is that emotional exhaustion predicted high, perceived job-demand and not the reverse. Emotional exhaustion could be anticipated to play a role in the development of psychological ill health. But this study seems to show that perceived job demands were not causal. The Radar report is available to subscribers: SK 1#3 6 Evidence from: A Tsutsumi et al. Scandinavian Journal of Work, Environment and Health. Apr (2001) Vol.27 #2 p 146. The authors conclude that job strain and

Duty of care standards apply to primary prevention and response to failure of primary prevention. Mitigation is regarded as a matter for the claimant. This may be more effective if done with the assistance of the tortfeasor/insurer. Evidence from: STalo et al. International Journal of Rehabilitation Research. March (2001) Vol.24 #1 p25. Pain management programmes have variable success in chronic pain cases. The study was designed to test whether cognitive behavioural therapy (CBT) would work, and for whom. The Radar report is available to subscribers: SK 1#3 2   Evidence from: JB Prins et al. The Lancet. March (2001) Vol. 357 #9259 p.841. This study provides convincing evidence that training in CBT can be effectively provided to non-specialists and that CBT can make significant improvements in functional activity. The Radar report is available to subscribers: SK 1#3 3   Evidence from: C Marhold et al. Pain. March (2001) Vol.91 #1-2 p.155. CBT treatment worked to a statistical

Although simple in principle, there are many opportunities for uncertainty in the development and deployment of GMOs. Environmental liability will be connected with professional indemnity and D&O. Contractual liabilities based on failure to perform and contamination of product are foreseeable. Evidence from: Meza TJ, et al. Transgenic Res., (2001) Vol.10,  p 53-67. Modified plants, when grown in stressful conditions may behave in undexpected ways. “Failure to sfafety” would seem to be a good principle to adopt. The Radar report is available to subscribers: SK 1#2 13 Evidence from: PL Bhalla et al. Int. Arch. Allergy & Immunology. 124(2001) Vol.1-3, p51-4. Pollen sensitisation could be addressed if the allergenic property of pollen was engineered out. This research tested the removal of allergen and whether the pollen remained viable. The Radar report is available to subscribers: SK 1#4 5 Evidence from: Crawley MJ, et al. Nature,  (2001) Vol. 409 6821, p 682-3 Escape

Regulation inevitably affects liability exposure, not least because it should lead to reduced risks but also because the required standard is made more explicit and breach of duty easier to define. Evidence from: Proposed revisions to EU Directive 90/220 on deliberate releases of GMOs into the environment. Points of contention: the lack of provision for environmental liability, export from the EU to non-EU countries is less strict than import, the continued use of antibiotic resistance marker genes. The Radar report is available to subscribers: SK 1#2 10   Evidence from: Speech by David Byrne, European Commissioner for Health and Consumer Protection, 10 February 2001 Mr. Byrne discussed the EU approach to engendering public acceptance of GM technology. Proceeding on the assumption that “trust can only come through transparency”, the EU approach would be to introduce “strong” regulation aimed at “giving consumers confidence” and to “promote

Stress is frequently assumed to affect the functioning of the immune system. If so, stress could increase vulnerability to disease. Reduced resilience could be described as a material contribution to outcome, or as a risk factor. It could also be that reduced immune system capacity increases a sense of lack of well-being. Views may be pieced together from research. Evidence from: Cohen S, et al. Psychological Stress and Antibody Response to Immunisation: A Critical Review of the Human Literature. Psychosomatic medicine 63(2001), 7-18 Not having found any evidence that stress moderates responses to immunisation, the authors propose that the stress effect must be in real life exposures, but don’t provide any evidence of this. The Radar report is available to subscribers: SK 1#2 9 Evidence from: SK Agarwal et al. Clinical and Experimental Allergy. Jan (2001) Vol. 31 p.25. A study of teenagers under stress, and effects on asthma. The hypothesis is that stress induces dysregulation of

A causal link between stress and heart disease would prompt significant liability exposure. Heart disease is very common. Feelings of being hassled are very common, and may be caused by heart disease or high blood pressure. Unravelling this knot will draw on disparate and incomplete studies. Evidence from: T.Hallman et al. Journal of Cardiovascular Risk Feb (2001) Vol.8 #1 p.39. After suffering manifest coronary disease it was found that compared with controls, there was excess family strife, physical stress, burn-out, daily hassles. Some of these could be subject to modification at work. The Radar report is available to subscribers: SK 1#2 7 Evidence from: GW Evans et al. Journal of Applied Psychology. Oct (2000) Vol. 85 #5 p.779. 40 experienced female office workers were assigned at random to a well-controlled trial of office work with or without open office noise at 55 dBA. Epinephrine, nor epinephrine and cortisol were measured before and after the test period. Subjects were asked

Identification of risk factors is a sensible precursor to designing interventions and seeing if they work as expected. It would seem obvious then that if a supposed risk factor turns out not to be valid then it should not feature in intervention studies or duty of care standards. Evidence from:  M.Hakkanen et al. Occupational and Environmental Medicine (2001) Vol.58 #2 p.129. Results show that the most significant risk factor for absence with diagnosable arm, neck and shoulder disorders is age: Age 30-40 Risk Ratio = 2.9 (95% confidence interval 1.2 to 7.1). High physical load was protective. The Radar report is available to subscribers: SK 1#2 5 Evidence from: G.A.M.Ariens et al. Occupational and Environmental Medicine (2001) Vol.58 #3 p.200. Among those sitting, neck pain (but not a diagnosis) was more likely if the neck was flexed by 20 degrees for more than 70% of the time. The Radar report is available to subscribers: SK 1#2 6 Evidence from: RSI conference 2nd March 2001. RSI was

Fibromyalgia (FM) is probably multi factorial in origin. Evidence from: A.Hakkinen et al. Annals of Rheumatic Disease (2001) Vol. 60 #1, p. 21. Muscle strength training works just as well for FM as for health people. This very small study shows that people with FM may have completely normal muscle health. If so, some other cause must be sought. The Radar report is available to subscribers: SK 1#2 2 Evidence from: R.Kwaitek et al. Arthritis and Rheumatism (Dec 2000) Vol. 43 #12. Small reductions in blood flow were detected in the thalamus of the Fibromyalgia cases. These were not sufficiently distinct to be diagnostic. The Radar report is available to subscribers: SK 1#2 3 Evidence from: V.Hadhazy et al. Journal of Rheumatology (2000) Vol.27 p.2911. Strenuous exercise improves quality of life for FM cases. But doesn’t cure FM. The suggestion is that there is no organic disease sufficient to negate the effects of fitness improvement. The Radar report is available to subscribers: SK

OSHA (USA) have published a framework and supporting tools for the prevention and management of work-related musculoskeletal disorders. The approach is essentially one of responding to significant symptoms by first deciding if they are significant and then, caused by work. the latter includes cases where the initial injury was not at work but where work could slow recovery or aggravate the injury. By responding to symptoms, the standard selects the most vulnerable rather than the average worker. Evidence from: OSHA Ergonomics Standard and supporting evidence review. SK 1#2 1 Evidence from: Occupational Health Review May/June 2001 p 3 Confirmation that the “Ergonomics Standard” which was accepted in the last few days of the Clinton administration, has now been revoked. The standard has been discussed in detail in a previous issue of The State of Knowledge journal Vol. 1#2. The argument against the standard seems to have revolved around the economic burden on business. It is not clear th

This review was created at the outset of the Radar project. The summary here covers diagnosis, causation, foreseeability, duty of care, prognosis, rehabilitation, mitigation, exposure variation. Evidence from: Andrew@reliabilityoxford.co.uk Early attempts to audit stress risk were conceptually flawed. The Radar report is available to subscribers: SK 1#1 3

This review was created at the outset of the Radar project. The summary here covers hazards, measurement of harm, foreseeability, legal regimes, remediation. Evidence from: Andrew@reliabilityoxford.co.uk The Radar report is available to subscribers: SK 1#1 2

This review was created at the outset of the Radar project. A summary of the findings for diagnosis, causation, foreseeability, duty of care, prognosis, rehabilitation. Evidence from: andrew@reliabilityoxford.co.uk The Radar report is available to subscribers: SK 1#1 1

Epidemiology may be used in evidence, helps justify the origin and certainty of expert opinion, helps in cross-examination. A relative risk among the exposed of 2.0 or higher is considered persuasive of causation in an individual. There are guidelines to help US judges to critique epidemiological evidence, no such guidelines exist in the UK. Evidence from: Reference Manual on Scientific Evidence. Federal Judicial Center…. 2000 2nd Edition. USA The Radar report is available to subscribers: 1#12 11

Carbon monoxide is poisonous, but poisoning is preventable. Uncertainty still exists on the effects of low level chronic exposure. Once exposure ceases, the gas is quickly removed from the body through the lungs. Evidence from: HSE CRR01 386 Landlords gas appliance fitters and employers should have insurance for this rare form of poisoning. The Radar report is available to subscribers: 1#12 10

IARC have decided not to recommend the use of sun screens as part of fulfilling a duty to protect against skin cancer. Physical and organisational barriers to exposure are recommended instead. Outdoor work and schools were explicitly considered. The Radar report is available to subscribers: 1#12 9

The Scientific Steering Committee (SSC) advising the EC has recently published opinion on the origin and transmission routes for BSE. They confirm the standing scientific consensus hypotheses that a prion of unknown origin is the agent for transmitting the disease; mainly via feed and cross-contamination of feed, and to a lesser extent via maternal transmission. There is a government funded vCJD compensation scheme. If cases become attributable to eating meat from animals after 2000, there may be pressure for the liability of food producers to be reviewed, opening the possibility of commercial insurance involvement. The spread of BSE to sheep (if possible), should be monitored. The Radar report is available to subscribers: 1#12 8

Intentionally added ingredients may contain allergens. The plan is to ensure that these are included on label. A precautionary response is anticipated, devaluing the meaning of the label. It is not easy to see how an overcautious label would create new liabilities. Product liability is strict. Contract liability issues can be anticipated where composition information from suppliers and quality assurance services proves to be inaccurate. Evidence from: Directive 2000/13/EC OJ L 109, 6.5.2000 On the 6th September 2001 the Commission issued a proposal for an amendment to the food labelling Directive (Directive 2000/13/EC OJ L 109, 6.5.2000). The proposal will abolish the “25% rule” which currently means that it is not obligatory to label the components of compound ingredients that make up less than 25% of the final food product. The new proposal means that all ingredients intentionally added will have to be included on the label. The proposal will also establish a list of ingr

Seeking a diagnosis of asthma depends on how severe it is. This study avoided self selection by following a cohort for 22 years. It found that symptoms of asthma (not diagnosed) and atopy were predictive of adult asthma. The implied defence is that adult asthma was very likely to happen regardless of any specific negligent exposure. Evidence from: HL Rhodes et al. Journal of Allergy and Clinical Immunology. November (2001) Vol. 108 #5. p. 720. A longitudinal study of early life risk factors for adult asthma. Cases of adult onset asthma should regarded as having a potential environmental cause. However, increased severity of asthma in adult life may have an innocent explanation. Risk factors for adult asthma may be useful in deciding the degree to which other causes are investigated. This was a prospective cohort study of 100 babies, born to atopic parents. Bronchial hyperresponsiveness was measured at 11 and 22 yrs. Annual check-up in first 5 years. 73 were followed up at 5 years, 67 a