An offence of corporate manslaughter would be based on the common law standard “gross negligence”. In our view this will lead to rapid evolution of what is meant, in civil law, by gross negligence. One of the key difficulties with proving the offence will be proof of proximity between a management decision and cause of death. The law will probably have a retrospective effect and liability insurers will be involved if there is any prospect of interim payments being made. Evidence from: Government response to HC 540, March 2006. “Draft Corporate Manslaughter Bill” The accepted definition and scope of ‘gross negligence’ could evolve as a result of this Bill. In our view it seems likely that the current tests of gross negligence will be relaxed. Further detail: 6#3-4 39

This very small study found evidence that could one day be used as part of an objective evaluation of hand-arm vibration syndrome. Nerve damage of this sort is not reversible but could have many alternate causes. Loss of sensory nerves in the skin, to this degree, on its own, would usually lead to mild impairment. Evidence from: HW Liang et al. J Occ Env Med (2006) Vol.48 p 549 – 555 “Reduced Epidermal Nerve Density Among Hand-Transmitted Vibration-Exposed Workers” Further detail: 6#3-4 38

Voice loss is a very general term including a wide range of impairments. There is detailed guidance on the prevention of voice loss but this is based on expert opinion and is untested in field research. IIAC concluded that diagnosis, causation and impairment were all too uncertain to warrant inclusion as a prescribed disease. Evidence from: Industrial Injuries Advisory Council (IIAC). Position Paper 16. March 2006. “Occupational Voice Loss” Further detail: 6#3-4 37

DEFRA have reviewed the available technologies for gene containment and ACRE support their findings. In essence, all containment strategies have weaknesses and post-release monitoring would almost always be required. Evidence from: ACRE Advice February 2006. “Advice on the implications of findings in a Defra-funded desk study: ‘Technologies for biological containment of GM and non-GM crops’” The report lists the ways in which containment can be made more likely. This should be of assistance in insurance risk assessment. Further detail: 6#3-4 36

The report confirms a causal link between exposure to contaminated metalworking fluids and extrinsic allergic alveolitis. Evidence from: DWP IIAC Cm6867 “Extrinsic Allergic Alveolitis” EAA is a very rare disease and can almost always be traced to an occupational exposure. When a disease could arise from several possible causes IIAC look for evidence of a doubling of risk associated with an occupational cause. No such statistical evidence was available for EAA in respect of metalworking fluids; IIAC relied upon the rarity of the disease to conclude that it was too much of a coincidence that one workplace would have more than one case. Further detail: 6#3-4 35

‘Well being’ is not the opposite of ‘ill being’. Causes for one are not necessarily mirror images of causes for the other. Evidence from: CD Ryff et al. Psychother Psychosom (2006) Vol.75 p 85–95 “Psychological Well-Being and Ill-Being: Do They Have Distinct or Mirrored Biological Correlates?” The problem is that duty of care will be established on the basis of linear logic: if x is a cause of stress then stop doing x or provide more of the opposite of x. The logic has been assumed rather than validated. This research shows the assumption is unsound in more ways than it was sound. Further detail: 6#3-4 34

Further evidence that cortisol levels are an unreliable witness for stress, undermining earlier confidence in their role in disease causation, related to stress. Evidence from: PMC Mommersteeg et al. Psychoneuroendocrinology (2006) Vol.31 p 216 – 225 “Clinical burnout is not reflected in the cortisol awakening response, the day-curve or the response to a low-dose dexamethasone suppression test” Seventy five burnout cases were compared with thirty five controls. The cortisol response upon wakening was identical in both groups as was the response to dexamethasone (the test here is of the responsiveness of the endocrine system). Further detail: 6#3-4 33

The research aimed to develop a commonly agreed framework for the determination of a case of work related stress. The framework would primarily be used for research work but it was hoped that it could also be used in occupational health and compensation. In our view, the framework is generally applicable but actual validity depends on the specification of the tools used and the assumed thresholds. It seems highly unlikely that a single set of tools and thresholds would be of general validity. In our view, expert (not GP) assessment is required for occupational and compensation-related determinations, but these could follow the framework suggested here. Evidence from: T Cox et al. HSE Research Report RR449 (2006) “Defining a case of work-related stress” The framework is logical but more work is needed to determine sensitivity and specificity. Further detail: 6#3-4 32

There were no significant prospective links between stress and objective evidence of heart disease, and, weak prospective links between stress and subjective heart disease. In theory, both the objective and subjective heart diseases observed in this study are caused by the same disease mechanisms. Either they are in fact caused by different mechanisms or, there is no causal relationship between stress and the disease mechanism. Evidence from: NR Nielsen et al. Epidemiology (2006) Vol. 17 p 391 – 397 ‘Perceived Stress and Risk of Ischemic Heart Disease Causation or Bias?’ Objective measures of heart disease show no relationship with stress. Subjective hert disease was weakly related to stress. Further detail: 6#3-4 31

The research provides some evidence that non-specific arm pain is a different phenomenon to specific upper limb disorders. The evidence come from studies of risk factors. Evidence from: K Walker-Bone et al. Occupational Medicine (2006) Vol. 56 p 243 – 250 “Risk factors for specific upper limb disorders as compared with non-specific upper limb pain: assessing the utility of a structured examination schedule” The main risk factors for diagnosable disorders were age,sex and general health. Some effect of work could be detected. For RSI there was no detectable effect of work. This casts doubt on any efforts to prevent RSI. Further detail: 6#3-4 30

The Industrial Injuries Advisory Council has given detailed consideration of the prescription of work related upper limb disorders (PDA 4 to PDA12). Minor modifications are suggested. Other diagnoses were considered e.g. fibromyalgia but there was insufficient evidence on which to base new proposals. Non-specific arm pain does not meet the requirement that there be a positive diagnosis, as opposed to a diagnosis by exclusion. Views on several disorders could be informative for the determination of liability issues. Evidence from: DWP IIAC Cm6868 July 2006. “Work-related upper limb disorders” Extensive detail: 6#3-4 29

The study provides support for the use of cognitive behavioural therapy (CBT) in enabling people to cope with back pain. The beneficial effect seems to last at least 5 years. Evidence from: SJ Linton et al. Spine (2006) Vol.31(8) p 853 – 858 “A 5-Year Follow-Up Evaluation of the Health and Economic Consequences of an Early Cognitive Behavioral Intervention for Back Pain: A Randomized, Controlled Trial” The findings cast some doubt on occupational causation and injury status. Further detail: 6#3-4 28

Evidence from: The Industrial Injuries Advisory Council (IIAC) IIAC Annual Report 2005/6 The annual report confirms the intention to publish a literature review and opinion on the prescription of occupational back pain and cervical spondylosis. Comment In response to a call for comments, the UK’s leading back pain charity, BackCare, indicated that prescription might reinforce unhelpful beliefs about non-specific back pain and the role of work. The best advice for those with non-specific back pain is to remain active and this includes going to work. Expert reviews [e.g. in the development of the Faculty of Occupational Medicine (FOM) guidelines] have consistently concluded that non-specific back pain is not caused by work and neither is it prevented by following standard ergonomic recommendations. Prescription would be possible if IIAC considered that work more than doubled the risk of back pain. More than 20% of the workforce has problems with back pain every year. The numbers involved

This session of the Committee was set in motion by fears that the new Directive would restrict the use of medical MRI scanners. The effect would be to encourage the use of ionising radiation (X rays) as an alternative. The Committee concludes that the Directive was not as well advised as it could have been. Clarification of the meaning of exposure action levels is provided; it is a very precautionary standard. Evidence from: House of Commons Science and Technology Committee. June 2006 “Watching the Directives: Scientific advice on the EU Physical Agents (Electromagnetic Fields) Directive” Our long-held view has been that the action levels included in the Directive do not form a reasonable basis for judging breach of duty of care in civil cases. We see no reason to revise this view on reading the Committee report. Further detail: 6#3-4 26

Those who were employed to work night shifts had a lower chance of developing Parkinson’s disease. Risk decreased with increasing years of night shift work. Parkinson’s disease and night shift work both affect large numbers of people in the UK; the research provides some reassurance that a causal link between them will not be established. Evidence from: H Chen et al. Am J Epidemiol (2006) Vol.163(8) p 726 – 730 “A Prospective Study of Night Shift Work, Sleep Duration, and Risk of Parkinson’s Disease” Further detail: 6#3-4 25

Dysregulation of blood glucose is linked to a large number of serious disorders including heart disease. This study reports a link between shift work and elevated blood glucose levels [possibly a sign of diabetes]. Further work is needed to establish whether this is the norm or just a result of the timing of the testing work. Evidence from: Y Suwazono et al. J Occ Env Med (2006) Vol.48 p 455 – 461. “Long-Term Longitudinal Study on the Relationship Between Alternating Shift Work and the Onset of Diabetes Mellitus in Male Japanese Workers” A mechanism for harm adds weight to causation arguments. Further detail: 6#3-4 24

Demographic analyses help inform assessments of changes in liability exposure. Shift working, teleworking, outsourcing, self employment and migration are likely to have a significant effect on working conditions. Whether these increase or decrease future liability exposures requires detailed analysis. Evidence from: HSE Horizon Scanning Initiative. May 2006. “Demographics.” Further detail: 6#3-4 23

The report includes data that could be used to assess the scale of employment practices liabilities resulting from the Age discrimination regulations. [Employment (Age) Regulations 2006.] Evidence from: DWP Press Release March 2006. “Publication of DWP research report 325: survey of employers’ policies, practices and preferences relating to age” Current practices are not always aligned with the new regime. the report estimates how often there is misalignment at present. Further detail: 6#3-4 22

If more people with disabilities are joining the workforce there may need to be revisions in systems of work. The data suggest the overal potential scale of issues arising. Evidence from: DWP Press Release Feb 2006. “Updated estimate of the numbers of disabled people including people with limiting long-standing illnesses, and their associated spending power” These numbers will be useful in estimating the effect of changes to Equal Rights legislation. If there are no changes to legislation or case law then experience rating should be an adequate guide to pricing. Further detail: 6#3-4 21

Standard N95 face mask dust filters were found not to perform well enough against particles < 100 nm effective diameter. Evidence from: A Balazy et al. Ann. Occup. Hyg. (2006)Vol. 50(3) p. 259–269 “Manikin-Based Performance Evaluation of N95 Filtering-Facepiece Respirators Challenged with Nanoparticles” N95 filters were tested for their ability to exclude nano particles (sodium chloride). Standard procedures require that penetration in excess of 5% be regarded as failure. Particle diameters ranged from10 to 300 nm diameters with a mode at 30 nm. At flow rates of 85 l/min there was significant penetration of nanoparticles. Penetration was reduced for the so-called high fit masks. There were no failures at 30 l/min. Penetration peaked at 40 to 50 nm. 30 l /min represents light work load, 85l/min represents heavy work load. Filters must pass the 85l/min condition. Comment The N95 filters tested here were, by current standards, not adequate. The question that is not answered

Certainty on the potential harm from nanotechnology is still some years away. There are no immediate plans to define new statutory duties but there are plans to produce good practice guidance; which could be influential in civil cases. The government is hoping that information provided by industry will help define regulatory and guidance needs. Information is to be provided on a voluntary basis. Evidence from: DEFRA March 2006 and August 2006. “Consultation on a proposed ‘Voluntary Reporting Scheme’ for engineered nanoscale materials” Clearly, if DEFRA are short of information, regulatory activity will be delayed. This give nano-research development and deployment work a period of grace in which to operate within existing rules. Our view is that these rules are not adequate. Further detail: 6#3-4 19

For information: There are several potential uses for nanotechnology in the food industry. Current regulation could be effective in controlling intentional usage. Evidence from: Advisory Committee for Novel Foods and Processes ACNFP/76/3 Discussion Paper. March 2006. “Nanotechnology and Food” The only example of control of food additives relates to the specification for microcrystalline cellulose, where the presence of small particles (<5 microns) is limited because of uncertainties over their safety. New additives would be assessed by the European Food Standards Agency (EFSA). Further detail: 6#3-4 18

Inaccuracies in desktop risk assessment of Genetic Modifications could lead to excessive protection. Evidence from: A Silvanovich et al. Toxicological Science (2006) Vol.90(1) p 252 – 258 “The Value of Short Amino Acid Sequence Matches for Prediction of Protein Allergenicity” Further detail: 6#3-4 17

Alcohol consumption can increase the risk of common health problems and causes some specific diseases. Recent case law suggests that lifestyle factors can be taken into account when considering compensation. If ever liability were to attach to the sale and supply of alcohol, the data provided in this report would help quantify the financial exposure. There remain many uncertainties about dose response relationships. Evidence from: NHS Lifestyle statistics report. “Statistics on Alcohol: England, 2006.” The Alcohol Harm Reduction Strategy for England estimates that up to 22,000 premature deaths per year are associated in some way with alcohol misuse. [6000 of these were due to alcoholic liver disease, 500 due to mental disorders, 92 due to heart disease.] Further detail: 6#3-4 16