EMFs

Chaotic evolution of the science:
Since the early eighties there has been an international effort to discover whether or not exposure to power frequency electromagnetic fields causes ill health. Health outcomes have focussed on cancers and heart disease and some, less well defined, behavioural effects. The precise specification of health outcomes has varied widely e.g. for a few years the links between electric blankets and breast cancer looked to be gathering credibility but are now largely disregarded. Since the early 1990s, authoritative reviews have given mixed signals about such causal links.

At present, the scientific view is that one form of childhood leukaemia is associated with very high exposures, but it is not clear if the link is causal. This will not be known until biologically plausible mechanisms have been established in the laboratory and then in real life. To date, Laboratory research has already been extensive, but results are inconsistent or irreproducible. In the case of cancer, this confirmation or rebuttal could take another 15 years. Exposure to emfs continues.

STRESS AT WORK

Adoption of a standard of care based on biological effect:
Since the early 1980s there has been considerable interest in demonstrating a causal link between occupational stress and heart disease; a condition that may take decades to become manifest. Some official sources accept that acute psychological stress can trigger a heart attack, but some, including those in the UK, do not. Some authoritative bodies have already accepted the link and some insurers provide redress by way of an employee benefit. In principle, the association is made plausible through the aggravation of atherosclerosis mediated by elevated blood pressure, which is a known risk factor for heart disease and in many people is a response to the experience of stress.

The causal link has not been established in civil law in the UK and may never be.

Control of exposure to stress at work has been subject to Official guidance since the 1990s. Guidance was, and still is, based on principles and observations that were revealed by the study of various forms of discomfort or biological effect at work e.g poor concentration or aches and pains. Guidance has made mention of problems with heart disease. Perhaps, one day, the publication of some of this guidance will be regarded as the date of knowledge, but which?

Since then, we have made regular reports of developments where causation and standards of care have been affected.

WELDING RODS: MANGANESE EXPOSURE

On the verge of acceptance?
Claimants have not succeeded in making the case that manganese poisoning leads to or accelerates progressive Parkinson’s disease (PD); although some cases have succeeded in a lower court the judgement has been overturned on appeal. This may not always be the case; there is an element of subjectivity in the available opinion.

PD will affects 2% of the over 60’s. If manganese is accepted as a cause, the number of speculative claims could be considerable.

The degree of reserving required for long term nursing care and death is of a completely different order to that required for reversible poisoning. Poisoning has been a recognised outcome since before the 1960s. Reserving for Parkinson’s disease is probably non-existent.

WHIPLASH

New approaches to compensation:
For the most part, whiplash neck injury claims in the UK are made on the basis of subjective reports of injury. Many such claims are settled each year, the cost of contesting them being out of proportion to the damages.

A small proportion of claims become complex, involving unexpected degrees of disability and are disproportionately expensive to settle. In these cases it would be cost effective to intervene in some way early on in the case, if the opportunity is presented. The key is in identifying who would be at risk of developing long term problems if early access could be obtained. Tools that could help identify cases at risk of a complex outcome are much needed.

ENVIRONMENTAL TOBACCO SMOKE

Compounded by evolution in the civil law:
Environmental tobacco smoke (ETS) is widely regarded as a risk factor for lung cancer and for cardiovascular disease. The position was suggested in the mid 1970s, asserted in the late 1980s and acknowledged in the late 1990s/ early 2000s. Guidance on the elimination of smoking at work has been available since the late 1980s.

At all times, the association proposed was very weak, not sufficient by itself to establish causation in an individual case. However, the degree to which risk is cumulative varies by health outcome and, in civil law, the degree of risk that is accepted as being material to an outcome has changed over the past 30 years. It is not inconceivable that some cases involving ETS related health outcomes will be decided on a basis of joint and several liability with exposures dating back to the late 1980s. The relevance of modern standards of material contribution may not have been predictable at that time.

Other Projects

Re: Liability (Oxford) has produced other detailed reports, basic research and guidance on:

• Asbestos diseases (several times),
• BSE (1996),
• Chromium Guidance,
• Employment Practices Liability,
• Environmental liability risk assessment,
• Epidemiology for liability risk managers,
• Genetic Engineering,
• Health promotion in the UK,
• Low Oxygen Atmospheres and implications for health,
• Liability Implications of the Precautionary Principle. (2002),
• Mineral Wool (1998),
• Occupational Back Pain,
• Public Liability Policy Triggers,
• Rehabilitation (1999),
• RSI,
• Silica,
• The insurance of pooled labour,
• Tinnitus,
• Toxic Mould,
• UK civil and statutory compensation systems,
• Whiplash Neck Injury.

These reports were written to specific briefs and are confidential to the client.

Over time some reports will be superseded due to advances in scientific knowledge and developing case law. They could however, be useful in the future as summaries of what was known at specific points in the past.

SUMMARY

The examples of uncertainty in diagnosis and causation serve to illustrate the point that evolving or uncertain science has a profound effect on the management of uncertainty in the liability insurance business.

The main reason for this is the causation wording of the insurance policy and the unpredictable nature of the evolution of science and the law.