THE EXTENT OF CHEMICAL PROBLEM
In
Rachel Carson’s book “Silent Spring” first
published in 1962 by Houghton Mifflin and recently published by
the Folio Society, London 2000, the preface includes a quote by
E.B. White:
“I am pessimistic about the human race because it is
too ingenious for its own good. Our approach to nature is to beat it into
submission. We would stand a better
chance of survival if we accommodated ourselves to this planet and viewed it
appreciatively instead of sceptically and dictatorially.” E.B. White
I quote Rachel Carson at page 41
of her book:
“The history of life on earth has been a history of
interaction between living things and their surroundings. To a large extent, the physical form and the
habits of the earth’s vegetation and its animal life have been moulded by the
environment. Considering the whole span of earthly time, the opposite effect,
in which life actually modifies its surroundings, has been relatively slight. Only within the moment of time represented
by the present century (the twentieth century) has one species – man – acquired
significant power to alter the nature of his world.
“During the past quarter-century this power has not
only increased to one of disturbing magnitude but it has changed in
character. The most alarming of all
man’s assaults upon the environment is the contamination of air, earth, rivers,
and sea with dangerous and even lethal materials. This pollution is for the most part irrecoverable; the chain of
evil it initiates not only in the world that must support life but in living
tissues is for the most part irreversible. In this now universal contamination
of the environment, chemicals are the sinister and little recognised partners
of radiation in changing the very nature of the world – the very nature of its
life.”
Page 42:
“The
chemicals to which life is asked to make its adjustment are no longer merely
the calcium and silica and copper and all the rest of the minerals washed out
of the rocks and carried in rivers to the sea; they are the synthetic creations
of man’s inventive mind, brewed in his laboratories and having no counter parts
in nature.
To
adjust to these chemicals would require time on the scale that is
nature’s; it would require not merely
the years of a man’s life, but the life of generations.”
In Viewpoint, November 1, 1998 – Volume 32, Issue 21 – Pages 508A
to509A, Nicholas A. Ashford and Claudia S. Miller in an article entitled “Low – Level Chemical
Exposures: A Challenge for Science and Policy”, said:
“We are just now beginning to recognise the link
between chemicals and new public health problems that challenge the tenets of
traditional toxicology and medicine.
These
include birth defects and other damage due to developmental toxicants,
auto-immune diseases “including Lupus, Scleroderma and Sjgren’s Syndrome,
chronic conditions in children (such as Attention Deficit Hyperactivity Disorder,
depression, and Asthma, that have become more prevalent in the past few
decades, chemical sensitivity including its overlaps with sick building
syndrome, unexplained illnesses of Gulf War Veterans, Chronic Fatigue Syndrome, Fibromyalga, Toxic Encephalopathy, and
new links to cancer, including childhood cancers.”
Take
for example, one industry which one would have hoped, would be a fairly safe
industry being hairdressing where workers can work with a range of toxins in
hair dyes, conditioners and other products..
You
may have seen recent reports in the press such as the West Australian, of
August 2, 2002, that the British Medical Association released the
results of a study in the Journal of Occupational and Environmental Medicine,
conducted by Swedish researchers on 7,000 hairdressers which showed that
hairdressers are significantly more likely to give birth to smaller babies than
the general population and to have babies with birth defects.
In
1992 Phillip J Landrigan, in the American Journal of Public
Health, Volume 82, No. 7, Professor and Chair in the Department of
Community Medicine, Mt Sinai School of Medicine, New York, pointed out that the
risks of Toxic Chemicals included lead poisoning, asbestos, childhood asthma,
cancer.
He
said of occupational disease that:
“Studies
conducted in New York State have estimated that 50,000 to 70,000 US workers die
each year of chronic occupational disease resulting from past exposure to toxic
substances. These diseases encompass a
broad range besides the lung cancer and mesothelioma of asbestos workers; they
include cancer of the bladder in dye workers, leukemia and lymphoma in workers
exposed to benzene and ionising radiation; chronic bronchitis in workers
exposed to dusts; disorders of the nervous system (including possibly dementia,
Parkinson’s disease, and motoneuron disease) in workers exposed to pesticides,
solvents, and certain other neurotoxins, renal failure in workers exposed to
lead; and cardiovascular disease in workers exposed to carbon monoxide and
carbon disulfide.
A
major impediment to assessing the contribution of synthetic chemicals to the
causation of cancer and other workplace diseases is the fact that only 20% of
the approximately 60,000 industrial chemicals in commerce have ever been tested
for their carcinogenic, neurotoxic, immuno-toxic or other toxic potential. Millions of American workers are therefore
exposed to chemical agents of unknown toxicity.”
Professor Landrigan pointed out:
“The
tragedy of environmental diseases is that they are highly preventable.”
The Senate Rural and Regional Affairs and Transport References Committee, in October 2000 completed its inquiry into “Air Safety and Cabin Air Quality in the BAe 146 aircraft” and concluded:
“Long term exposure to a number of substances has been shown to be harmful”.
Para
6.24
“…the
weight of evidence…suggests that a number of flight crew have suffered from
toxicity…”. Para 6.25
“The Committee is also convinced that there is sufficient evidence … to justify further examination of the following factors:
· the effects on human health (of aircraft cabin contaminants),
·
the cumulative physical effect of exposure to these
substances which can affect particular individuals)”, Para 6.27
It would appear that over 100 flight crew have suffered illness in Australia as the result of exposure to fumes on BAe 146 aircraft.
The report of the F111 Deseal/Reseal Board of Inquiry of the Royal Australian Airforce of July 2, 2001 is particularly instructive.
The Board concluded
“It is
estimated that in Australia, 4 times as many people die from diseases caused by
exposure to hazardous substances in the workplace as die from traumatic injury
on the job. The volume of
occupationally caused ill health is of course much greater. The problem is insidious because the full
effects of exposure often do not manifest themselves at the time, with the
result that management and workers alike, fail to have proper regard to the
dangers.” Page 1 – 5.
The Board noted that workers began to suffer symptoms of chemical exposure shortly after the beginning of the spray seal program on F111 aircraft but the seriousness of the problem was not recognised or responded to effectively for some years
It concluded:
“We attribute this failure to aspects of Airforce organisation, in particular the low priority given to occupational medicine in comparison with the health needs of the air crew...”. “…we note the preference of the medical profession for signs visible to the external observer rather than symptoms reported by patients, leading to a tendency to ignore reports of symptoms when tests proved negative”. Page 11/2
The Board concluded that there were probably in excess of 400
workers “…currently suffering symptoms which they attributed to their
exposure. The symptoms include skin
rash, gastro intestinal problems, headaches, memory loss and mood and
neurological disorders”. Page 1,
Appendix 5
“Good science, in short, is strongly biased against concluding that a relationship exists in the data”. Page 2, Appendix 5
“Epidemiological studies are not the only way to establish
causation; the circumstances of
particular cases can also be persuasive”. Page 3, Appendix 5.
“In a large number of individual cases
presented to the Board, we find the evidence of causation to be
persuasive. Especially compelling is
the fact that the symptoms date from the time of exposure”. Page 3, Appendix 5
“It is on this basis that we estimate that in excess of 400
workers have suffered long term damage to their health”. Page 3, Appendix 5
In 1996 in Western Australia, Alcoa commissioned a liquor burning plant at its Wagerup Alumina Refinery and workers began reporting various symptoms of ill-health and after some years in particular, multiple chemical sensitivity was suffered by at least nine workers.
Although Alcoa has denied liability, it has offered to pay each worker $350,000.00 plus guarantee total and permanent disability superannuation payment which would be likely to be in excess of $350,000.00 for each worker.
One
of the categories of hazardous substance often overlooked are the industrial
organic solvents derived from coal, oil and natural gas.
Important
uses of organic solvents according to a Worksafe Australia publication
entitled “Industrial Organic Solvents” of November 1990 are:
·
cleaning (degreasing)
agents to remove oils and grease from machinery, metals, plastics and textiles.
·
dry cleaning
·
constituents of paints,
varnishes, lacquers, thinners, waxes, floor and shoe polish, inks, adhesives
·
motor fuels, antifreeze
mixtures
·
pharmaceutical products
and preservatives
·
manufacture of
artificial rubber, leather, plastics, textiles and explosives
·
therapeutic, pesticide, fumigant and
disinfectant formulations
·
extraction of fats, oils
and medicinal materials from seeds, nuts and bones
·
use in various chemical
reactions and laboratory procedures.
Excessive
chemical exposure can take place by one or more of the following routes:
·
Inhalation
·
Skin or eye contact by
vapour or liquid
·
Ingestion
THE
HIDDEN MENACE OF CHEMICAL DAMAGE
Chemical
damage can be insidious, especially where it is long term low dose. It can also be easily under rated where
initial symptoms of physical irritation such as skin rash, itchiness, runny
nose, strong smell, slight headache and other such indicators may be disregarded
as being transitory or unconnected with chemical exposure. However, these symptoms can be indicative of
gradual onset of very serious health consequences. Chemical exposure can be cumulative and certain toxic chemicals
can bio-accumulate in body tissue.
Whilst
those exposed to toxic chemicals may never notice symptoms, reproductive
potential may be destroyed or tragic consequences may result for children of
the exposed.
Susceptibility
varies from person to person and because of the potential for insidious and
cumulative damage and because often in our society certain persons have already
been exposed without obvious adverse effects to one or more of a wide range of
toxic chemicals, it is difficult to determine just what measure of exposure may
cause damage in any individual instance.
In
1997 Professor Wai-on Phoon of Sydney University, a renowned specialist in
Occupational Medicine, considered that there was abysmally poor training in
occupational and environmental medicine given to medical students in Australia,
and that situation seems to me to have changed little.
Thus
many Doctors are ignorant of chemical illness.
The
diagnosis of chemical disease is often difficult especially where it is
polysystemic, (involving more than one system of the body) and because medical
science is still determining or at least evaluating satisfactory objective
tests for chemical illness, in the case of many relevant conditions.
Often
workers exposed to toxic chemicals will suffer gradual memory loss, increasing
bouts of aggression, tiredness, nightmares, and other subtle effects without
realising the cause or even noticing the change.
Ignorance
of the source of chemical contamination is not unusual e.g., from exhaust fumes
and the inhalation of vaporised motor fuel.
Many
chemical injury victims are so weakened by illness as to be hopeless advocates
in their own case, let alone to be advocates for others similarly injured and
advocates for the prevention of similar injury to others. Chemical injury victims who develop Multiple
Chemical Sensitivity must even isolate themselves from ordinary human society to
maintain their health.
Often
mixtures of chemicals can have a multiplicative effect rather than simply an
additive effect. This is called
synergism. At times the effect of
mixing two chemicals however, can be that each cancels out the effects of the
other.
To
ensure workers are not excessively exposed to airborne toxic chemicals, the
airborne concentrations in workplace air of the chemicals must often be
measured and monitored.
The
standard measure of chemicals in the air is in milligrams per metre cubed (mg/m3)
or parts per million (ppm) and the limit set for some hazardous chemicals in
the workplace air is called the threshold limit value (TLV). Sometimes a time weighted average is
assessed (TWA). Sometimes short term exposure limit (TLV – STEL) is fixed. Sometimes a ceiling limit is fixed (not to
be exceeded even instantaneously).
The
TLV’s can establish with some certainty when dangerous levels in the air have
been reached, but not at what level worker exposure is safe. Since at least the early 1980’s, the
American Conference of Governmental and Industrial Hygienists, in the preface
to its “TLV’s for Chemical Substances in the Work Environment” page 3, warned
that “…The best practice is to maintain concentrations of all atmospheric
contaminants as low as is practicable.”
The Preface says at page 2 “because of wide variation in individual
susceptibility, however, a small percentage of workers may experience
discomfort from some substances at concentrations at or below the threshold
limit; a smaller percentage may be
affected more seriously by aggravation of pre-existing condition or by
development of an occupational illness.
See Worksafe Australia Exposure Standards for Atmospheric
Contaminants in the Occupational Environment 1995 Para 2.3
Risk
assessments systems to date have often ignored the most vulnerable in the
population such as foetuses, children, women, the elderly, people with previous
exposures, and pre-existing conditions.
TLV’s
are in any event negated in cases where the worker has suffered over 8 hours
per day of exposure (40 hours per week), skin contact, or is likely to have
ingested the chemical concerned and TLV’s require re-evaluation where mixtures
of toxic chemicals are involved, or previous excessive exposure has been
suffered.
Monitoring
of chemical content in air to protect the safety of workers is a highly skilled
science and in my experience is often inadequate and misleading in the
workplace if conducted at all.
Monitoring that is conducted outside the breathing zone of the worker
e.g., on a wall, or on another worker may produce dramatically different
results from monitoring conducted within the breathing zone of the worker
concerned. Monitoring that is conducted
for a shorter period than the worker actually works may mislead. Monitoring conducted at the start of the day
may mislead, compared to the results obtained at the end of the working day or
at the end of a process or a series of processes when fumes may have gradually
increased. Furthermore, the test
equipment must be highly specialised for certain chemicals and we have had
cases where monitoring was conducted giving a nil result for a chemical only to
find on investigation that the testing equipment could not register that
chemical, or at least not adequately measure the content in air of that
chemical.
Of
course monitoring on a day when there are small chemical emissions from the
process conducted in the workplace on that day will give no indication of what
exposure the worker may be suffering on other days where different emission
levels can be expected.
In
my experience, labels on containers have frequently been inadequate and at
times indeed positively misleading: for
example: “Avoid excessive vapours” on a
container of toxic chemical where avoidance of excessive vapours is not
possible without special equipment to which the label makes no reference.
Factors
such as heat, ultraviolet and ionising radiation, humidity, abnormal pressure,
(altitude) heavy or strenuous work and other stresses may adversely increase the
toxic response to a substance, as may the effects of smoking cigarettes and
ingesting alcohol.
Wearing
clothing impregnated with chemical droplets or vapours (this is especially
important to note where the worker has worn this clothing before and after
work) may increase exposure levels and negate the TLV.
Some
chemicals are purposely deodorised by the manufacturer so that the warning and
deterrent effect of the pungent smell of certain dangerous chemicals is thereby
removed or reduced.
Many
chemicals can be absorbed through various kinds of protective clothing, and in
some cases, even the gloves which have the greatest known protection to a
particular chemical will eventually become permeated by the chemical and once
this takes place, if a worker continues to wear the gloves, that worker may be
absorbing the chemical on a continual basis whilst wearing the gloves.
Fumes,
vapours or droplets of some toxic chemicals may enter through the eye if
chemical resistant goggles are not worn in the workplace.
Food
left uncovered in the vicinity of toxic fumes can absorb chemicals which can
then be ingested by workers.
Agitation,
pouring, spraying or heating of a chemical can radically increase vaporisation
which can result in sudden dangerously high concentrations of the chemical in
air.
In
the case of some toxic chemicals even small increases in atmospheric
temperature can significantly increase the content in air of the fumes of the
chemical retained for example in an open container.
Again
the direct heating of some chemicals can cause fumes therefrom not only to more
readily vaporise but to engender far more toxic effects..
General
room building ventilation is typically poorly designed for toxic fume control
and can actually increase concentration of chemical fumes in the breathing zone
of workers by agitating fumes or recycling fumes. Local exhaust ventilation is frequently poorly designed. The design and implementation of local
exhaust ventilation systems is again part of a highly skilled science if it is
to be effective. Local exhaust
ventilation systems which we have seen which were implemented in the 1980’s in
Western Australia have frequently caused more harm than good. For example, they may draw fumes past the
worker’s face increasing inhalational exposure.
Often
material safety data sheets (MSDS’s) have misleading hazard data or inadequate
hazard data.
MULTIPLE
CHEMICAL SENSITIVITY
Professor
Cullen of Yale University and Medical Director of Alcoa gave a talk in Western
Australia recently in which he said that multiple chemical sensitivity which he
first identified in 1987, is a condition which appears to be life long,
untreatable, and the aetiology of which is still unclear.
He
left open the possibility that the causal pathway was psychological but went on to say that the usual treatments
that would assist in not dissimilar psychological conditions appeared to have
no effect for MCS patients and consequently he doubted the psychological
pathway as a cause.
He
said that in certifying workers unfit for work, he left it to workers to
determine where they could safely work because their own bodies were the best
indicators of where incitant toxicants were present.
An
excellent paper on multiple chemical sensitivity has been prepared by Professor
Chris Winder of the School of Safety Science in the University of New South
Wales in the magazine “Elsevier – Toxicology Letters”. 128 (2002) 85 - 97
He
identifies four relevant groups suffering multiple chemical sensitivity being
industrial workers, office workers, (tight buildings), contaminated communities
and individuals.
The
most common symptoms he describes as:
·
Respiratory symptoms
·
Headaches
·
Fatigue
·
Flue like symptoms
·
Mental confusion
·
Short term memory loss
·
Gastro intestinal tract
difficulties
·
Cardio vascular
irregularities
·
Genito-Urinary problems
·
Muscle & joint pain
·
Irritability &
depression
·
Eye, ear, nose and
throat problems
Professor
Winder powerfully argues that MCS is not a psychological condition, and says
that although research into the possible mechanisms of MCS is far from
complete, a number of promising avenues of investigation indicate that the
alteration of the sensitivity of nervous system cells would be a possible
causal mechanism of MCS.
Information
is now available in particular from MCS Referral and Resources, 508 Westgate
Road, Baltimore MD21229 USA that Multiple Chemical Sensitivity is
recognised by 25 United States Federal Authorities including the US Department
of Education, the US Department of Health and Human Services, Social Security
Administration, the US Department of Housing and Urban Development, 10 Canadian
authorities, 28 US State Authorities, 14 US Local Authorities. This resource centre cites recognition of
the condition of MCS in 8 United States Federal Court Decisions and 21 United
States State Court Decisions.
OBJECTIVE
TESTS FOR SUBTLE CHEMICAL INJURY
(This overview is by no
means exhaustive and is designed only to alert Plaintiff Lawyers new to the
field of chemical injury, of certain options)
Dr
Judy Ford a Geneticist in Adelaide, has pioneered the testing of chromosomes
and in the Journal Cytobios 96, 179 to 192 (1998), she and others
published an article to the effect that certain structural abnormalities found
in chromosomes were 27.2 times more likely in persons exposed to toxic
chemicals than in controls.
Many
of you would be familiar with the Neuro psychological testing which can assist
in determining the extent of mental disorder caused by chemicals.
Dr
Richard Teo in New South Wales, has developed an audio-evoked potential
response test which he considers can produce results which are indicative of
brain dysfunction, the likely cause of which may be chemical agents.
Tests
can be conducted upon the peripheral nervous system which can produce results
indicative of chemical injury.
Dr
Gunar Heuser an expert in neurotoxicology and immunotoxicology in California
has used P.E.T and S.P.E.C.T brain scans/imaging to find what he considers is
clear evidence in certain cases of brain damage as the result of chemical
insult.
Dr
Goran Jamal Neurophysiologist of West London, Regional Neuroscience Centre,
Charring Cross Hospital, London UK has pioneered a range of tests for
organophosphate injury.
PROOF
OF WORKER’S CLAIM FOR COMPENSATION AT COMMON LAW
In
cases where the Plaintiff seeks compensation for injury suffered as a result of
exposure to chemicals in the workplace, the Plaintiff often has to establish a
wide range of matters to succeed in negligence including:
1.1
What hazardous substance
or substances was the worker exposed to?
What were the products concerned, the constituents of each product, and
the percentage of those constituents?
1.2
What degree of exposure
did the worker suffer?
1.3
What route of exposure
or exposures (skin, inhalation, ingestion)?
1.4
At what level of
exposure were the chemicals considered to be dangerous by the experts in
chemical safety, at the time of exposure.
1.5
What knowledge did the
employer have, or should the employer have had of that danger level?
1.6
What if any health
effects were known at the time to be anticipated from excessive exposure to
each such relevant chemical? What if
any health effects should have been known at the time by the employer (if it
cannot be proved that the employer did know of such health effects?)
1.7
What symptoms appeared
at what time in the Plaintiff and how contiguous was this with exposure to
toxins in the workplace?
1.8
What if any part did a
mixture of chemicals have including any synergism (multiplicative effect) play
or potentially play, in the cause of the symptomatology?
1.9
What health effects are
now known to arise from exposures such as those suffered by the Plaintiff?
1.10
In the experience of experts in the treatment
of chemical injury, are the symptoms consistent with exposure to the chemicals
concerned and inconsistent with other diagnoses?
1.11
What precautions were in
place in the workplace at the time?
What alternatives were made available to protect the worker from
exposure to toxins?
1.12
What alternatives should
have been put in place by the employer to ensure that the worker is not exposed
and/or what precautions should have been taken by the employer to ensure that
exposure of the worker to toxins was minimised?
For decades, textbooks on chemical safety have
stressed that there is a hierarchy of safety control measures in the use of
chemicals, so that the safest, reasonably available alternative is selected to
minimise exposure. The list is not
exhaustive and it is always recommended that an holistic approach to chemical
safety systems be implemented.
I set out the hierarchy below, because it is so
helpful in testing whether or not a Defendant has breached its duty of care.
-
Elimination of that
process which requires use of the toxic chemicals;
-
Substitution of a
non-toxic chemical in the process instead of the toxic chemical;
-
Engineering controls
e.g. local mechanical exhaust ventilation under a fume hood;
-
Administrative controls
e.g. obtaining industrial hygiene expertise to isolate risk and design,
implement, monitor and maintain safe systems, training staff, implementing safe
practices e.g. keeping lids on containers holding toxic chemicals at all
possible times, warning and fully informing those who might be exposed;
-
Personal protective
equipment e.g. respiratory cartridge masks, chemical resistant gloves, chemical
resistant apron, face shield, chemical resistant goggles etc..
1.13
What degree of relevant
risk minimisation would have been achieved had the employer implemented those
alternatives and precautions which were reasonably available but not
implemented in the case being examined?
Often
there are a number of different experts who will be required to prove some of
the above matters including occupational hygienist, specialist in occupational
medicine, specialist in chemical science, toxicologist, and where brain damage
is an issue, neuropsychologist, psychiatrist, as well as the general
practitioner.
A
useful point to start for the lawyer advising workplace toxic exposure victims
is the National Code of Practice produced by Worksafe
Australia of March 1994 on Control of Workplace Hazardous Substances
and a raft of Australian Standards in the area of chemical safety, to say
nothing of applicable State or Commonwealth legislation. Worksafe Australia has a range of other very
important publications concerning chemical safety.
LEGAL
PRINCIPLES ASSISTING TOXIC TORT VICTIMS
Along
with a few principles specific to hazardous substance claims I have included
some of the basic principles with which we are all familiar in dealing with
negligence cases, because these principles can be especially helpful in
pursuing workplace toxic exposure cases and because Defendant Solicitors
continue to put arguments which ignore these principles:
Liability
-
The employer’s duty of
care to an employee “…is not merely to provide a safe system of work; it is an
obligation to establish, maintain and enforce such system. Accident prevention is unquestionably one of
the modern responsibilities of the employer… and in deciding whether an
employer has discharged his obligation to his employees, the Court must take
account of the power of the employer to prescribe, warn, command and enforce
obedience to his commands.” Maclean
v Tedman (1984) 155 CLR 306 at 313.
- The standard of care expected of the reasonable man
requires him to take account of the possibility of inadvertent and negligent
conduct on the part of others. MacLean v Tedman supra p 311
-
In considering
contributory negligence, the court may have regard to “… inattention bred of
familiarity and repetition, the urgency of the task, the man’s preoccupation
with the matter in hand, and other prevailing conditions.” “It is then for the tribunal of fact to
determine whether any of these things caused some temporary inadvertence, some
inattention, or some taking of a risk ...excusable in the circumstances because
not incompatible with the conduct of a prudent and reasonable man.” Maclean
v Tedman Supra p315
-
Also, in considering
contributory negligence, it is critical to note the far greater responsibility
that will attach to a Defendant whose acts or omissions may place others in
danger compared to the position of an injured person whose acts or omissions
could only have in the circumstances caused danger for his own safety. Pennington v Norris (1956) 96 CLR 10
at 16
-
Although it is incumbent
upon a Plaintiff to prove that the Defendant should reasonably have foreseen the
risk which eventuated, even where the risk is remote in the sense that it is
extremely unlikely to occur, it may nevertheless constitute a foreseeable
risk. A risk which is not farfetched or
fanciful is real and therefore foreseeable.
Per Mason J Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at
47-48
-
The duty on the employer
is that of a reasonably prudent employer and it is a duty to take reasonable
care to avoid exposing the employee to unnecessary risk of injury. Reasonable foreseeability will be determined
by what the employer knew or ought to have known. If a reasonable person in the position of the employer could not
be expected to know he may be required to get and follow expert advice. The duty of an employer to take reasonable
care for the safety of his employees is a personal duty and is not discharged
by entrusting it to competent delegates.
An employer cannot rely upon ignorance on the part of his employees who
are responsible for the supervision of the workforce. Western Australia v Watson [1990]WAR 248 at 266 to 267).
-
If sufficient facts were
known which would cause a reasonable person in the position of the employer to
make reasonable enquiries about the hazards of exposure, the law will say that
the employer ought to have known what the employer would have found out by
reasonable enquiry. Western Australia v Watson supra p 283.
-
It is the duty of the
employer to keep reasonably up to date on contemporary knowledge both as to
possible risks to his employees in his workplace and also how such risks may be
avoided, although he does not have to plough a lone furrow. See for example Andrews v SC. Lohse
and Co. (1986) A.T.R. 80 – 043 AT P 67, 889
-
It is not enough for an
employer to supply an employee with equipment which may protect the employee
from danger. Thus in a case of contact dermatitis, the Plaintiff succeeded
because although the Defendant had provided gloves, the Defendant had failed to
warn the Plaintiff of the dangers of not wearing those gloves and had failed to
instruct the Plaintiff to wear the gloves. Pape v Cumbria County Council
[1992] 3 All ER 211.
-
The custom
in the trade or profession is likely to provide a good guide as to what might
be expected of the reasonable person but is by no means conclusive. Even where
the most highly trained and regarded of professions (for example, the medical
profession) has an invariable practice of acting in a particular way, the Court
will nevertheless determine for itself whether or not the reasonable person
could reasonably have been expected to act in a different way to minimise the
risk of injury to his/her neighbour. Rogers v Whitaker (1992) 109 ALR 625
at 631 – 632.
-
In determining what the
reasonable person in the position of the Defendant would be expected to do by
way of response to a risk to his “neighbour” which that person could foresee
“…the perception of the reasonable man’s response calls for a consideration of
the magnitude of the risk and the degree of probability of its occurrence,
along with the expense difficulty, and inconvenience of taking alleviating
action and any other conflicting responsibilities which the Defendant may
have.” Mason J. Wyong Shire Council v Shirt 1979-80 146 CLR 40 at 47. This definition of the balancing process is
helpful in chemical poisoning cases because so often the response would involve
the least difficult and expensive of all precautions – a warning.
Foreseeability
And Causation of Damage
- the
Plaintiff has the onus of proving that a reasonable person in the position of
the Defendant would have foreseen a risk of injury of the kind (in broad terms)
sustained by the Plaintiff, but the Plaintiff does not have to prove that the
extent of the damage was foreseeable.
So, where it was foreseeable that inhalation of dust would cause
distress involving coughing, sneezing, wheezing, a dry throat, and exposure to
the dust might cause dermatitis to exposed portions of the body, this was
sufficient to found a claim by the Plaintiff for a debilitating lung condition
caused by the dust inhalation, even though the medical profession at the time
would have believed such a cause and effect sequence to be unlikely. Clarke v Chandler Clay Pty Ltd 1984
ATR 80, 631 at 80,667 & ff per Brindsden J.
- The failure of medical science to explain the causal
pathway from a certain event or set of events to the symptomatology of a
medical condition will not necessarily preclude a finding by the Court that the
events caused the condition, unless the medical evidence precludes even an
hypothesis to that effect. Adelaide
Stevedoring Co. Ltd v Forst (1940) 64 538 at 563.
-
Where there are possible
competing causes, it is sufficient if the evidence would support an inference
on the balance of probabilities that the Defendant’s negligence materially
contributed to the Plaintiff’s injury. Per
Malcolm CJ Chance v Alcoa of Australia 1990 ATR 81-017 at 67, 726 & ff
quoting McGee v National Coal Board (1973) 1WLR 1 at p 6 per Lord Wilberforce
as explained by Lord Bridge in Wilsher v Essex Area Health Authority (1988)
2WLR 557 at 560. See also Western
Australia v Watson supra p286.
-
in reaching that
conclusion, reliance can be placed on non-medical evidence. See Chance v Alcoa of Australia Pty
Ltd supra p67, 725.
-
A pre-existing condition
which has remained asymptomatic until the time of the accident the subject of
the claim for compensation will in general have no adverse effect upon a
Plaintiff’s claim unless evidence establishes with some reasonable measure of
precision what the pre-existing condition was and what are its future effects,
both as to their nature and their future development and progress – See
Purkess v Crittenden (1965) 114 CLR 164 at 168. It should be noted, however, that if the
condition had some real prospect of developing through the ordinary stresses
and strains of life then a deduction will be made for that chance – Luntz
Assessment of Damages (Third Edition) para 2.2.5 & ff
-
I adopt with great
respect a submission prepared in draft recently by Barrister John Gordon, to
the Federal Inquiry on Public Liability Insurance, which I think in summary is:
Where:
·
Medical science cannot
resolve the issue but where the chain of events compellingly suggests a
connection or where reasonable medical opinion would not rule out the
connection
·
The tortious act has
destroyed (or effectively destroyed) the means of proof or the Plaintiff’s
ability to prove causation;
·
There is an imbalance
(in favour of the Defendant) of knowledge of the matters that caused or
resulted in the breach and/or the injury (ie. emission cases, surgical
malpractice etc).
…The law in Australia is as stated by McHugh J.
in Chappell – v – Hart (1998) 195 CLR 232 @ 238-9:
“if a wrongful act or omission results in an increased
risk of injury to the Plaintiff and that risk eventuates, the Defendant’s
conduct has materially contributed to the injury that the Plaintiff suffers
whether or not other factors also contributed to that injury occurring”,
… as amplified by Gaudron J. in Naxakis – v –
Western General Hospital (1999) 197CLR 269 @ 275 – 6:
“…and in
that situation, the trier of fact …is entitled to conclude that the Act or
omission caused the injury in question unless the Defendant establishes that
the conduct had no affect at all or that the risk would have eventuated and
resulted in the damage in question in any event”.
Seltsam
Decision
In
applying the words of McHugh J. in Chappel’s case (Supra) we need
to emphasise the word that in the phrase “that risk eventuates”.
Thus
a Plaintiff who contracted renal cell carcinoma failed to establish that his
exposure to asbestos caused the renal cell carcinoma. The Plaintiff relied in large part on epidemiological evidence
which raised only a possibility that asbestos may have contributed.
In
answering the question of whether or not the increased risk “eventuated” two
members of the Court of Appeal answered in the negative. The members of the Appeal Court made a very
detailed analysis of the strengths and weaknesses of epidemiological evidence. Seltsam
Pty Ltd v McGuinness; James Hardie
& Co Pty Ltd v McGuinness [2000]; NSWCA 29 (7 March 2000).
Case Examples on
Causation.
In the case of New South Wales T/a New South Wales Department of Agriculture v
Allen [2000] NSW CA 141 (13 July 2000) the New South Wales Court of
Appeal confirmed the decision of the Judge at first instance that the
deceased’s exposure to DDT and Arsenic in his work as a Stock Inspector,
working in the field of cattle tick control, was a
contributing factor to the aggravation, acceleration, exacerbation, and
deterioration of his disease of pancreatic carcinoma.
The
Court held:
1. On
issues of causation in a civil action for compensation for injury, the law
requires proof on the balance of probabilities, on the whole of the evidence,
both scientific and lay and the Court must not abdicate its responsibility to
scientific/medical experts. (p 38, p 45
2.
Scientific proof is much
more rigorous than legal proof in civil causation.
(p 3)
3.
Where the expert’s
evidence is based on the requirements of scientific proof alone, the Court will
look beyond that evidence (p 3)
4.
Where medical science
admits only a possible connection, the Court will consider whether on the
balance of probabilities, an inference should be drawn upon the whole of the
evidence, both medical and lay. (p 45)
5.
It is only where science
will not even admit the proposition (that the negligence of the Defendant made
a material contribution to the injury) as possible, is the common sense
inference on the balance of probabilities not open. (p 55)
6.
The Court may reach a
conclusions which the sequence of events would naturally inspire in the mind of
any common sense person, uninstructed in pathology. (p 45)
7.
The evidence need only
establish that the toxins at work, materially contributed to the contraction of
the disease. (p 32)
8.
The Court favours that
scientific view as an explanation which is rational and based on the entirety
of the evidence, rather than one which offers no explanation at all. (p
34, p43)
9.
It is precisely where
scientific proof is unavailable, that a lay inference may be permissible. (p
38)
10.
In particular,
scientific studies which fail to show a connection and recommend more research,
are not determinative. (p 42)
11.
The exact levels of
toxins in the dust on the deceased’ skin and inhaled and the levels of dusts
are impossible to ascertain, but it was relatively heavy. The industrial hygienist’s calculations make
a number of unproved assumptions and do not prove the exposure was insignificant.
(p43 to 44, p57)
12.
Whether a causal
connection exists is to be determined by applying common sense to the facts of
the case. (March v V & MH Stamare Pty Ltd (1991) 171 CLR 506 per
Mason CJ at 509. (p 42)
13.
A robust and pragmatic
approach should be taken to the issue of causation:
Wilsher v Essex Area Health Authority (1998) AC 1074
per Lord Bridge at 1090. (p 43)
14 The
fact that medical opinions are not in accordance with the consensus of
scientific opinion, does not preclude their acceptance as a matter of law. (CGT
v Adamcic (1961) 106 CLR 292) (p 43)
In
the case of John Amos Hill v William Tomkins Ltd, QBD/96/NJ/0594
delivered 17/10/1997, a decision of Smith J, Her Honour had to
decide whether or not the negligence of the Defendant in exposing the Plaintiff
to a poisonous insecticide during his employment as a farm worker had resulted
in early symptoms of heart pain, dizzness, unsteadiness on his feet,
irritability, moodiness, incontinence of urine, chest pain, shortness of
breath, sweating, shivering, blurring of vision and diarrhoea followed by later
symptoms including some memory loss, other mental deficits, and periods of
chronic fatigue.
The
Plaintiff suffered certain symptoms which were held not be related to the
chemical exposure, but Her Honour found in favour of the Plaintiff on the issue
of causation in relation to many of those symptoms.
This
was a case of alleged organophosphate poisoning. The approach of Her Honour to the causation issue, where no
research yet supports a causal connection to a particular symptom complex, is
instructive:
“It
appears that Mr Hill is the first case in which it has been claimed that
Pirimiphos-methyl has caused long term peripheral neuropathy. I shall approach that claim against the
background of the impression I have from the research, that it is unlikely,
although not impossible that he has suffered such an effect as the result of
his exposure in 1993. If I accept
evidence that he has demonstrated, abnormal neurological or neuro-physiological
signs, and if I find that there is no other plausible explanation for such
signs, I shall be prepared to hold that there probably was a causal link
between those signs and the exposure.
However, because of the state of the research, I must approach this
aspect of the Plaintiff’s claim with some scepticism.” (p 23)
Her
Honour’s examination of the issue of causation taking account of the sequence
of events, is also instructive:
“I
shall approach this aspect of the case by considering whether the Plaintiff’s
complaints of symptoms of weakness and fatigue are genuine and if I think they
are, deciding when they first manifested themselves. If I find that there is a close time relationship between
exposure and the onset of genuine symptoms, and if there is no other plausible
cause for those symptoms, I shall consider that it is open to me to find a
causal connection.” (p 27)
In
the case of Mary Hanrahan, John Hanrahan, and Selina Hanrahan v Merck
Sharp and Dohme (Ireland ) Ltd in the Supreme Court of Ireland
[1988] ILRM 629, the Plaintiffs farmed land which was situated
about one mile from the Defendant’s factory.
The
factory engaged in the processing of pharmaceutical products which involved the
storage and use of large quantities of toxic substances as well as the disposal
in the factory of toxic and dangerous chemical residues.
The
Plaintiffs instituted proceedings claiming that emissions from the factory had
caused injury to the Plaintiffs, their farm animals as well as plants on the
farm.
At
first instance, the Judge found against the Plaintiffs on the basis that the
scientific evidence produced by the Defendant was sufficient for the Court to
conclude that the Plaintiffs had failed to prove their case on the balance of
probabilities.
This
was a case which in the end was fought as a tort of nuisance only.
The
Appeal Court held that the largely uncontroverted evidence from the Plaintiffs
and residents of the surrounding district, was to the effect that between 1978
and 1983, there were intense objectionable smells from the Defendant’s factory
and these were so frequent, pronounced and prolonged that each of the
Plaintiffs had made out a case for damages in nuisance, for offensive smells
from the factory.
The
Appeal Court also held that there was independent evidence to support the
Second Plaintiffs claim that the ill health of which he complained was due to
factory emissions, other witnesses stating that where they observed emissions
from the factory, they felt burning sensations and other irritations. The Supreme Court observed:
“While
the Plaintiffs claim rested primarily on evidence of what was felt or observed
at the time, the Defendants’ case was primarily one of rebuttal, based on
scientific evidence of a reconstructive nature. It is for that reason that Counsel for the Plaintiffs have urged
that there is greater force and credibility to be given to the first hand
evidence of witnesses whose truthfulness was not called into question, as
opposed to the largely abstract ex-post-facto evidence of scientists who had no
direct or personal experience of the matters complained of. Consideration must of course be given to
such a submission, as well as to the submission that the various complaints
should not be viewed in isolation, that they are necessarily interlinked, and
the evidence of the source of one complaint may be treated as corroborative or
confirmatory of the source of another complaint, such as that evidence of a
witness that he experiences an offensive chemical smell should be coupled with
his evidence that at the very same time, he noticed cattle in deep distress.”
In examining the scientific evidence
produced by the Defendant, the Court held:
“The
possible effects of such emissions have to be considered in terms of factors
such as air chemistry, meteorology, the height of the factory chimneys, the
configuration of the Suir Valley, local meteorology features ( such as the
inversion by which air is trapped in the valley when winds are light) and the
effect of prevailing winds. Readings
taken at the points of emission in the factory are therefore not necessarily a
sound guide as to the consequences of the emissions in different parts of the
valley.
For
example, some of the emissions take place at levels below that of the valley
floor, and the top of the scrubber stack is on a level with the ground floor of
the Plaintiff’s house.
The
point has been taken that factory readings and the result shown by computer
models do not take account of what actually happens in the Suir Valley.
The
criticism has also been made that measurements of air borne concentrations on
the Plaintiffs’ farm give no more than an average daily concentration, thus
leaving out short violent emissions and not taking into account the deleterious
effect, particularly on grazing animals of prolonged low-level emissions of
gases and risks of unknown degrees of toxicity.” (p 644)
In the end, the Court held in the lead
judgment:
“A
consideration of the scientific evidence as a whole given on behalf of the
Defendants, leads me to the conclusion that, even if accepted in full, it only
shows what could or should have happened in the way
of damage by toxic emissions.
In
the light of what did happen in the way of toxic damage, I consider that
the Defendants’ evidence could not be held to rebut the Plaintiffs’ case.
Theoretical
or inductive evidence cannot be allowed to displace proven facts.
It
was proven as a matter of probability that John Hanrahan suffered ill health as
a result of toxic emissions from the factory.
It
was a fact and so found by the Judge that there was unusual damage to some
plant life on the Plaintiff’s farm in the relevant period, the only suggested
source of this damage being the factory, and there was a volume of
uncontroverted evidence given by eye witnesses that animals were seen and heard
to be ill and in distress at a time when the observer was experiencing foul
chemical smells or weeping eyes or irritated skin, which could have been caused
only by the factory.
It
would be to allow scientific theorising to dethrone fact to dispose of this
claim by saying, as was said in the Judgment under Appeal, that there was
“virtually no evidence in this case of injury to human beings or animals which
has been scientifically linked to any chemicals emanating from the Defendant’s
factory.“(p645)
Summary
of the Factors To Look For In Proving Causation
It
would appear that the following factors are to be taken into account in
considering the causation issue in a chemical injury claim:
1.
What was the condition
of the Plaintiff before exposure? A
Doctor will inquire as to what is the medical history of the patient, family
history, social history, other exposures.
2.
Was there a temporal
relationship between onset of symptoms and exposure to the toxins? What was the history of event(s)?
3.
Will science admit a
possibility that the toxins caused the symptoms? Refer to literature of case reports, epidemiological studies,
Government Publications, material safety data sheets, data from experiments on
animals.
4.
To what extent were
other people, plants or animals adversely affected and with what similarity to
the Plaintiff’s situation?
5.
Is there any other
plausible explanation which might leave the toxins as being the possible cause
but with an equal or greater likelihood that the symptoms may have been caused
by another agent or agents?
It
is important to realise however, that in some cases a temporal relationship may
not be critical and in some cases the fact that the Plaintiff alone has
suffered damage, may not preclude a finding in his or her favour.
Nuisance
Nuisance
is a particularly useful tort for Plaintiffs having suffered environmental
harm.
In Bridges Brothers Ltd v Forest Protection Ltd in the new Brunswick Supreme Court,72 D.L.R. (3d)
(p 335) it was held that a
nuisance was created by the discharge of an insecticide from an aircraft if
that substance is wrongfully caused or allowed to escape onto the land of
another, in that case, killing bees that pollinated the Plaintiff’s blueberry
fields.
The
Court held:
“It
is no defence to an action for nuisance to show that the Defendant’s operation
of his farm is a useful one necessary to the public interest….or that it is
carried on with all care and skill and every effort is made to prevent it from
being a nuisance...”
“Their
duty to their neighbour, is not merely to take care so as to avoid causing a
nuisance. Their duty is to abstain from
causing one at all…”
“Negligence
moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and
in good faith and in a genuine belief that it is justified.”(p 360 – 361)
In Bridges case the Plaintiff succeeded
both in nuisance and negligence.
The
case of Hanrahan (Supra) is a good example of the tort of
nuisance in action. In nuisance cases a
defence that other polluters have contributed to the problem, has been
approached harshly by the Courts. Lipman and Bates point out in Pollution Law in
Australia Lexisnexis Butterworths Australia 2002 P 105-6:
“…it
has accordingly been held that it is no defence to a nuisance action for
pollution to prove that the environment was already polluted from another
source or that the respondent’s actions were not the sole cause of the
nuisance.”
Where nuisance arises:
“…out
of the cumulative discharge of all polluters … the Court may assist the
Plaintiff, notwithstanding that the Plaintiff would be unable to successfully
sue any individual polluter, by allowing action against them all.”
OTHER
AUSTRALIAN CASES ON CHEMICAL INJURY
McKenzie –v- Harper
and Others T/as Allambie Pastoral Co. (1995) R400072/93, NSW Supreme Court,
unreported – Master Malpass held:
“…the sequence of events in this case
inspires the presumptive inference that the Plaintiff’s condition was caused by
his chemical exposure. Prior to the shearing, he was in good health. The
symptoms first appeared during the shearing. His symptoms are consistent with
previous organo-phosphate exposure and organo-phosphate poisoning.”
In that case the
Plaintiff and three other shearers were exposed to a tarring mixture of
chemicals designed to kill live maggots on sheep. The mixture splashed onto the
shearer’s bodies and clothes in the confined unventilated space of the shearing
sheds and they suffered symptoms including headaches, nausea, vomiting,
itchiness, rashes and later lethargy, loss of appetite, cognitive difficulties
and depression.
Later in McKenzie
–v- Harper and others T/as Allambie Pastoral Co., Johnson –v- Harper and Others
T/as Allambie Pastoral Co. and Tiedemann –v- Harper and Others T’as Allambie
Pastoral Co. matter numbers R400073/93; R400074/93; R400075/93 (8 October 1997)
Supreme Court NSW Grove J held that: (p 6)
“If the Defendant’s
contention is correct then four shearers almost simultaneously succumbed to
their respective levels of alleged alcohol abuse by manifesting broadly similar
patterns of symptoms. I do not accept that coincidence particularly when there
is another more probable explanation, namely Organo-Phosphate poisoning.”
In these cases the
Court held that the company in each case had failed to take due care to protect
the four shearers from exposure to the toxic substances and awarded
approximately $250,000.00 for past and future loss for each shearer.
The case of Uta
Frida Larsen-Walsh –v- University of New England first came on before
his Honour Judge Neilson in the Compensation Court of New South Wales in matter
number 13087/89 and he delivered judgement on May 20,1997. In that case the
Plaintiff had worked for the University between 1977 and 1989 as a lecturer in
art and was exposed in poorly ventilated conditions to the fumes from chemical
additives in artists’ materials and other toxic substances, which exposure
occurred frequently and continued for extended periods of time.
The Plaintiff
alleged injury by way of severe chemical sensitivity, anxiety state and
multiple chemical sensitivity syndrome.
His Honour took
into account (page 3) the Plaintiff’s evidence:
“that
although the symptoms occurred shortly after her working in G49 and related
areas, that their intensity and longevity increased with the passage of
time. That can easily be inferred from
her evidence that, for example on Mondays when she went to work she felt well;
Tuesdays much the same, although she may develop some symptoms on the Tuesday
and the Wednesday; On the Thursday and the Friday she would feel unwell. On
Saturdays she would start to recover from her symptoms, but that on Sunday she
felt quite well again and eager enough to go to work on the following Monday.
However
with the passage of time that cycle of periodic improvement or the periodic
removal of symptoms deteriorated such that she would not fully recover over the
weekend.”
“There
is medical evidence to support that proposition and the applicant’s own
evidence about it’s onset would support a lay inference that the two are
connected. Whether the two are connected by way of simple causation or the
aggravation or acceleration or exacerbation of some underlying or pre-existing
condition or constitutional defect I really do not need to determine.” (page
8)
Later his Honour found:
“I accept that the applicant was vulnerable to this condition, but I do accept that it was precipitated by her exposure to chemical substances in the respondent’s employ between 1977 and 1989.” (page 11)
His Honour went on to hold that when the Plaintiff travelled
to New Zealand and worked as an ordinary teacher and suffered an aggravation of
her condition that this was the effect of her exposure to chemical fumes in her
employment in New Zealand which was not a risk for which the University of New
England was responsible. (page 15)
His Honour awarded the applicant in that case her full Workers’ Compensation wages for the period from February 1989 to July of 1989 and then partial wages from August 1989 to the date of Judgement and continuing.
This matter went on as a common law claim in the District
Court of New South Wales before Judge Robison in matter 5103/97 Uta Frieda
Larsen –v- University of New England delivered March 16, 2000.
In this case the Court allowed the Plaintiff to give evidence by way of
video link as it held that it was satisfied that due to the current symptoms
that the Plaintiff had she was unable to come to Sydney to give evidence
personally in Court. (page 2)
The Defendant admitted breach of duty of care.
His Honour endorsed
the finding by his Honour Judge Neilson that whether or not the condition was
organic or psychiatric and although its exact nature is unknown the Plaintiff
had contracted a condition reasonably called Multiple-Chemical Sensitivity. (page
18)
His Honour
concluded that the Plaintiff had a case:
“To
substantiate some expenditure on a house or at least the renovations of a
house, to accommodate the position whereby she needs to avoid exposure to toxic
materials and the like.” (page
27)
In terms of
non-economic loss his Honour held that the Plaintiff had sustained a disability
of seventy percent of a most extreme case: “that results in a figure at that
point of $126, 000.00: (pages 30-31)
His Honour also
awarded $40, 000 for general damages for pain and suffering and loss of
amenities in relation to the time prior to the commencement of the relevant
Act.
His Honour awarded
$176,289 for past loss of earnings plus the Fox v Wood component (p30
– 33) and $106,444.00 in future loss of earning capacity. (page
34)
His Honour awarded
$142,688.00 for domestic assistance.
His Honour made an award for future domestic assistance reduced for the
fact that His Honour assumed that the Plaintiff would be able to obtain a more
toxic free environment and would only require 2 hours of domestic assistance a
day and awarded $172,188.00.
His Honour awarded
$1,600.00 for the introduction of a fume hood into the home to remove cooking
fumes and $140.00 for a reading box so that the Plaintiff should not be exposed
to toxins from print medium.
He also awarded
$60,000.00 for special accommodation needs. (pages 36 – 37)
This matter went on
appeal to the New South Wales Court of Appeal, UNE v Larsen-Walsh [2000]
NSWCA 363 (December 5, 2000). The Appeal was dismissed and the Court
noted among other things some of her symptoms, and some of the consequences of
her condition: (Para 19 of
Handley J.’s reasons for decision)
“These include
headaches, breathing pains, stomach pains, inability to eat or sleep, loss of weight. She has been known to collapse when
travelling, become disoriented, develop severe headaches and cramps, and to be
unstable on her feet so that she is likely to fall. She has found difficulty with her breathing, has experienced
chest pains for extended periods and has been bed ridden.”
In the case of Mosley
v The Broken Hill Pty Co Ltd, the Honourable Justice Lander in the Supreme
Court of South Australia on January 23, 1998 (Judgment No: S6522), the
Plaintiff had suffered exposure to asbestos.
The Plaintiff had suffered a condition brought on by the exposure at
work which might well lead on to lung cancer or other serious or possibly fatal
diseases.
The Court held:
“The Plaintiff
therefore has to be compensated for the possibility that he might contract one
or more or all of those diseases and the consequent probabilities that would
give rise to a re-occurrence of his major depressive disorder, with the result
that he would be unable thereafter to exercise any earning capacity.” (page
33)
PRODUCT
LIABILITY
The
Reader will find a very useful summary of the Law in relation to product
liability for chemical manufacturers and distributors is provided by Peter
Long in the 1997 APLA convention papers.
CONFIDENTIALITY
AGREEMENTS
In
the field of chemical injury perhaps more than any other, Defendants like to
settle cases with a confidentiality agreement.
In
the August 1998 Edition of “Trial” in an Article headed “Keeping Secrets
with Confidentiality Agreements”, Maja Ramsey, Justine Durrell and Timothy
W.A. Hearn, suggest that by aiding the Defence in their secret keeping efforts,
Plaintiffs sacrificed the well being of others.
Some
of the arguments they cite, which should be used against confidentiality
include:
·
Goes against the public
policy of providing open access to Court documents.
·
May keep regulatory
agencies from protecting the public.
·
May keep parties from
implementing policies and procedures against unlawful or harmful conduct.
·
May prevent innocent
victims from timely seeking medical or legal advice.
·
May keep unsafe products
on the market. [Or unsafe systems operational in the workplace or community].
The
authors note that the single biggest disadvantage in negotiating confidentiality
is the fear that without agreeing to
secrecy the case will not settle.
However, they go on to say that in the past seven years in their
practice since their law office stopped accepting these agreements, not one
case had failed to settle or had settled for less as a result of a refusal to
accept confidentiality agreements.
In
fact, the authors say that as the result of the respect and trust generated by
taking an open, reasoned and consistent stance, this approach to settlement had
actually enhanced the settlement value in a number of cases and had resulted in
easier and quicker resolution of following cases.
The
authors remind us that we can argue when confronted with a proposal that our
client should sign a confidentiality agreement:
·
Would it be enforceable?
·
If a Lawyer in a
subsequent case should discover the attempt at secrecy, could the consequences
not be dire for the defendant.
·
Public entities have a
duty to inform the public of their expenditures including settlement money paid.
·
The press and the public
will not take kindly to such an agreement if they know that the injured party
has promised secrecy.
·
They recommend that a
preferable course is to put to the Defendant that it would be appropriate for
both parties to work toward open disclosure of the settlement on a win/win
situation with the Defendant announcing new policies to prevent further injury and
the Plaintiff being please to be involved in that process.
LAW REFORM TO FAIRLY
COMPENSATE TOXIC TORT VICTIMS AND ENCOURAGE ALL AUSTRALIANS TO ADOPT SAFER
PRACTICES IN RELATION TO USE AND DISPOSAL OF TOXIC SUBSTANCES
In
1997 at this conference, I made some predictions which have unfortunately
proved true and also made some recommendations:
I believe that the incidence of chemical injury has
been steadily growing over the past decade and will continue to grow with
horrendous implications for our society, not only for the present generation,
but also for future generations unless reforms are implemented.
If I am wrong and the chemical injury rate remains
static there is still every reason for reforms.
Injury and disease caused by chemical exposure in the
workplace is for the most part readily preventable.
Most of the problems arising in this area are caused
by ignorance and carelessness.
In the chemical injury situations that I have
investigated, we have found that there are safe alternatives, or at least
precautions that can be taken which render the use of toxic chemicals in the
workplace reasonably safe.
I am convinced that an effective system for awarding
of common law damages will be of great assistance in bringing about a safer
workplace.
The argument has been put that employers insure
themselves and therefore provide a buffer that removes or at least soothes the
pain which will otherwise result in consequence of a failure to provide due
care for the safety of their employees.
However, in the industries where I and my colleague
Plaintiff lawyers have enjoyed some substantial success in obtaining full
damages in compensation for the negligence of employers in relation to injury
to employees, those employers have found it very much in their interest to
improve their systems of safety and have done so. Presumably this is because they can thereby reduce their premiums
dramatically, and also reduce add on costs created by the loss of the services
of valued employees injured at work.
Also employers are embarrassed when common law actions are found against
them.
Indeed I have been told by expert consultants in
occupational health and safety that the employers who make a first priority
commitment, from the level of the managing director, to occupational health and
safety, have been able to reduce the incidence of injury in their workplaces to
almost nil, with insurance premium reductions like 60% (in the case of major
companies: millions of dollars).
In my opinion the burgeoning problems of chemical
injury in Australia warrant the appointment of a Commissioner with the status
of a Judge and knowledge of the basic principles of the common law and of
chemical science and chemical safety with special powers to:
- institute and maintain a register of chemical injuries, conduct
enquiries of his or her own motion, seek by public notice complaints of
chemical damage where the Commissioner considers that there is a potential that
other persons have been injured by exposure to particular chemical
hazards. (this should apply both in the
workplace and elsewhere)
- to force immediate and full disclosure of information
concerning products containing hazardous materials and processes permitting
exposures to hazardous substances.
- Co-opt
experts knowledgeable on chemical poisoning issues.
- Award common law damages to the chemically injured, including
interim awards of damages where that may be appropriate.
- give public notice of significant findings so that further
injury is likely to be prevented.
(details of hazardous products, practices, symptoms, prognosis).
- extend where it is in his or her opinion fair and just to do
so, time limitations on the right to institute proceedings.
- Ensure all the costs reasonably and necessarily incurred by a
successful Plaintiff are paid.
- Enforce strict and expeditious time limits on parties in
the processing of claims so as to avoid strategies based on technical delay by
parties, especially powerful Defendants.
- Reverse the onus of proof similar to the provisions under
Part 5A of the Trade Practices Act.
-
Develop commission rules
which ensure that the corruption of the pleading process is avoided.
I
say to the legal profession, the common people of Australia and their political
and bureaucratic leaders, if you want to create a safer Australia for our
citizens, strengthen the common law, make those who carelessly injure others,
pay for the consequences.
Secondly,
as an urgent priority, create a national chemical adverse effects register
(reporting system) for all agricultural, industrial and other chemicals, which
register is readily accessible by medicos, lawyers and members of the public.
The problem of toxic chemical injury is
vast and often insidious, and cumulative.
I
adopt the conclusion of Ashford and Miller in their article “Low-level
Chemical Exposures; a Challenge for
Science and Policy: (Supra) (page 3)
“A
policy response consistent with a precautionary view presents specific
challenges: Policies must be harmonised
and coordinated among the major stakeholders.
A
new corporate stewardship is required, one that is harmonised with the
customers and the public’s expectations that companies will adhere to the
precautionary principle. Rather than serving
as an Arbiter or Mediator of conflicts amongst stakeholders, government must
return to its role as a Trustee of the environment, public health and
sustainability, and direct its interventions and research support to all phases
of multi-stage diseases, for example to promoters as well as initiators of
cancer.”
Chris Phillips
Barrister and Solicitor
COPYRIGHT 2003
(The
assistance of my wife Diana Phillips B Sc. Hons (Zoology) is acknowledged in
the preparation of this paper)
