The case examined whether or not there was a duty of care to protect employees from exposure to noise of less than 90 dB(A) intensity. It concluded that in general 90 dB(A) was an acceptable threshold from 1963 up until 1987 when the case for an 85 dB(A) action level was first consulted on in public. It also established a method for determining noise induced hearing loss when loss was small and rejected a duty of care based on the prevention of harm when that harm could not be identified in an individual case. Harm from exposures at 85 dB(A) was probably undetectable. Evidence from: Parkes v Meridian Ltd [2007] EWHC B1 (QB) 14th Feb 2007. in an area where the hearing loss to be expected can be regarded as marginal, or minimal, or so small as not to be identifiable in individuals but only in a statistical sense there could in my view be no liability at common law for breach of duty in exposing employees at such levels. Degree of risk remains a valid test of the standard applied to the d

Evidence from: Norton v Corus UK Ltd [2006] EWCA Civ 1630 NHS Gateway number 7645 “Injury Costs Recovery Scheme” CDC Advance Data Number 381 Dec (2006) “The State of Childhood Asthma, United States, 1980–2005” Further detail: 6#9-10 26 BB

The report presents a very extensive analysis of evidence but seems to us to have jumped to precautionary conclusions e.g. that RCF could cause mesothelioma or lung cancer. Evidence from: CDC/ NIOSH May 2006-123 “Occupational Exposure to Refractory Ceramic Fibers” Much is made of the formation of pleural plaques in those with high exposures to RCF. By analogy with asbestos. Further detail: 6#5-6 45

The Agency has determined that all products containing carbofuran (a widely used pesticide) are not eligible for re-registration. A small number of uses will be permitted until 2010. The immediate effect is a 98% reduction in use. High acute exposure is potentially fatal but there are no suspected ‘long tail’ effects of exposure. Evidence from: USEPA August 2006. “Interim Re-registration Eligibility Decision: Carbofuran” The case provides a clear example of the commercial impact of regulatory activity. D&O policies could provide a remedy. Further detail: 6#5-6 2

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

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

Evidence from: R Kanwal et al. JOEM (2006) Vol.48#2 p 149 – 157 “Evaluation of Flavorings-Related Lung Disease Risk at Six Microwave Popcorn Plants” O A Taiwo et al. JOEM (2006) Vol.48#3 p 275 – 282 “Incidence of Asthma Among Aluminum Workers” WHO Fact Sheet No 299 March (2006) “Electromagnetic Fields and Public Health: Static electric and magnetic fields” HSL/2006/19 “Summary Report on Additional Work Carried Out on the Monitoring of Chrysotile Containing Textured Decorative Coatings” Health Protection Agency RCE-2 “Dose Criteria for the Designation of Radioactively Contaminated Land” Health Protection Agency “Tuberculosis Update” Further detail: 6#1 48BB

Evidence from: EW Skorpinski et al. J Allergy and Clin Immunol. (2006) February p 463 – 464 “Two cases of accidental epinephrine injection into a finger” H Aksoy et al. Journal of Applied Tox. (2006) Vol. 26 p 10 – 15 “Genotoxicity study in lymphocytes of offset printing workers” T Murayama et al. Am J Ind Med (2006) Vol.49 p 1 – 7 “Estimation of Future Mortality From Pleural Malignant Mesothelioma in Japan Based on an Age-Cohort Model” TP Brown et al. Env Health Persp (2006) Vol.114#2 p 156 – 164 “Pesticides and Parkinson’s Disease—Is There a Link?” SK Obendorf et al. Arch. Environ. Contam. Toxicol. (2006) Vol.50 p 31 – 44 “Distribution of Pesticide Residues Within Homes in Central New York State” L Hou et al. Epidemiology. (2006) Vol.17 p 302 – 307 “Pendimethalin Exposure and Cancer Incidence Among Pesticide Applicators” HSE RR408 “Genetic variation in susceptibility to chronic effects of organophosph

Soils are inadequately characterised (chemistry, physics, biology and rheology) and the interactions between key variables are not understood. Whether or not changes in soil microorganisms would be deemed harmful is not predictable. Commercially relevant soil properties are routinely recorded and could affect land values. There is no mechanism which allows foreseeability of the effects of GM agriculture on land values. Evidence from: AK Lilley et al. Trends in Biotechnology (2006) Vol.24#1 p 10 – 14 “Life in earth: the impact of GM plants on soil ecology?” Studies of microbes in the soil cannot (yet) provide general commercially valuable information. Macroscopic variables, such as water retention, are recorded routinely but linking them and any changes in them with GM agriculture remains speculative. Some changes would be described as contamination, some as changes in biodiversity (both would be of interest to the regulator in charge of remediation). Further detail: 6

State of the art review of the effects of mould exposure. Evidence from: RK Bush et al. J Allergy Clin Immunol (2006) Vol. 117#2 p 326 – 333 “The medical effects of ‘mold’ exposure” In a jurisdiction where evidence of causation is required, there would be very few successful liability claims. Further information: 6#1 39

Evidence from: Health Protection Agency RCE-1 Feb (2006) “Power Frequency Electromagnetic Fields, Melatonin and the Risk of Breast Cancer” An interaction between exposure to power frequency emfs and the production of the hormone melatonin has been the subject of 20+ years of research. Motivation for this research was provided by the possibility of a role of melatonin in the risk of breast cancer. The conclusion: In aggregate, the evidence to date does not support the hypothesis that exposure to power frequency emfs affects melatonin levels or the risk of breast cancer.

The effectiveness of cognitive behavioural therapy as a treatment for electrical hypersensitivity suggests the disease is triggered and maintained by interpretation of perceived exposure. Illnesses created and maintained by perception alone are complex for insurers. A duty-holder could attempt to make reasonable accommodations but in so doing give the impression of meaningful care and may even encourage the harmful perception. Evidence from: GJ Rubin et al. Psychother Psychosm. (2006) Vol.75 p 12 – 18 “A Systematic Review of Treatments for Electromagnetic Hypersensitivity” Further detail: 6#1 27

This brief paper provides powerful evidence against any link between mobile phone use and the development of acoustic neuroma. Evidence from: PD Nelson et al. Neurology (2006) Vol. 66 p 284. “Trends in acoustic neuroma and cellular phones: Is there a link?” graph: 6#1 26

Claims that aspartame is carcinogenic may have been premature. Evidence from: The EFSA Journal (2006) 356, 1-44 “…a new long-term carcinogenicity study on aspartame” Dietary exposure to aspartame rarely exceed 10 mg/kg bw even in heavy users. Cancer is indivisible, aspartame use in processed foods is very common, strong evidence of carcinogenicity could cause problems to food manufacturers and their insurers. Further detail: 6#1 17

The EFSA Journal (2006) Vol.357 p 1 – 46 “Migratory Birds and their Possible Role in the Spread of Highly Pathogenic Avian Influenza” This European Food Safety Authority paper concludes that not enough is known/certain about avian influenza in wild birds to ensure that the right public health and commercial protection measures are put in place. Poultry keepers should increase bio-security measures, there should be more proactive monitoring of wild birds and vaccination programmes should be considered. Trade may need to be restricted but wild birds could be more effective at spreading disease than trade mechanisms and so reduce the benefits of such measures. Migration and movement patterns were too uncertain to be sure of this. The clearest recommendations were that poultry holdings should not be built in the vicinity of wetland areas and that new vaccines and how to use them, should be researched. Comment The definition of ‘wetland’ and ‘vicinity’ would be of interest to an

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

IARC have produced a monograph on the subject of lung cancer and man-made vitreous fibres. IARC monographs programme: Carcinogenic risks from airborne man-made vitreous fibres [glass wool, rock wool, and slag wool] Man-made vitreous fibres in the form of wools are widely used in thermal and acoustic insulation and in other manufactured products in Europe and North America. These products, including glass wool, rock (stone) wool, and slag wool, have been in use for decades and have been extensively studied to establish whether fibres that are released during manufacture, use, or removal of these products present a risk of cancer when inhaled. Andrew Auty prepared a report for ABI in 1999 and concluded that the case for carcinogenicity had not been made, but that these wools should be classed as irritants. [A small proportion of people in physical contact with these wools have a strong, short-term inflammatory reaction]. An earlier IARC review (1988) provide no evidence of increased risk

The International Agency for Research on Cancer (IARC) has published a monograph on low frequency emfs. They conclude that exposure is possibly carcinogenic to humans. The opinion arises from consistent evidence of detectable risk of leukaemia in children exposed to more then 0.4 micro Tesla time weighted average. Evidence from: IARC monographs series. In our view, this does not represent a date of knowledge on generic causation. A number of objections to the IARC conclusion are acknowledged by IARC and expert opinion more widely. The Radar report is available to subscribers: 1#10 11

Noise induced hearing loss is still an issue. This reform of duty of care standards will bring more people within the claimant population. Poor understanding in the courts risks providing compensation for trivial harm. Given that exposure measurement is also subject to considerable uncertainty, a Duty to ensure exposure (with hearing protection) is less than 85 dB(A) would seem to be in accord with the requirements of civil liability (for the 50 year old male manual worker). That is, exposure below this value would not be shown to have on the balance of probabilities, contributed to measured HTLs. Evidence from: andrew@reliabilityoxford.co.uk A full description of the noise Directive its strengths and weaknesses. The Radar report is available to subscribers: 1#10 1

Outcome of interest = brain cancer. No increased risk was found for either lifetime exposure or the most recent 5 years of exposure. No Dose Response effect was found. Evidence from: T Sorahan et al. Occupational and Environmental Medicine. October (2001) Vol.58 # 10 p 626. The report includes data on the emfs exposure profile and electricity generation workers. The Radar report is available to subscribers: 1#9 8 Evidence from: DA Savitz. Occupational and Environmental Medicine. October (2001) Vol.58 # 10 p 617. The commentator seriously doubts the need for any more expenditure and effort on epidemiology in this area until some new biologically credible mechanism has been proposed. Even then, the new studies would need to quantitatively account for why previous studies had not established a significant risk. 1#9 9

The study suggests a moderate association between work in the SiC industry and three forms of cancer. Evidence from: P Romundstad et al. American Journal of Epidemiology. May (2001) Vol. 153 #10 p 978. If there had been no other exposure to carcinogens this research would be a strong indicator of causation but with several details to be worked out. The Radar report is available to subscribers: 1#5 10

The review carries some weight with policy makers, it focusses on mains frequency fields. The risk in the UK would seem to be  small; even when using medical statistics. Evidence from: NRPB Volume 12 #1 (2001). ISSN 0958 5648. price £30.00 ‘ELF Electromagnetic Fields and the Risk of Cancer?’ If eventually there is some causal link uncovered, the data in this report provide a basis from which to estimate the liability exposure. The Radar report is available to subscribers: 1#3 1

This report of the proceedings of a meeting held at the Royal Institution of Great Britain, 21st Feb 2001. Mains frequency and radio frequency exposures were reviewed and reported upon; providing a snap shot of the state of knowledge. Evidence from: A meeting at the Royal Institution of Great Britain 21st February 2001. Uncertainty was the main characteristic of each of the topics discussed yet application of the precautionary principle (as it was then understood) gave rise to some recommendations which could be regarded by some as indicating a date of knowledge. Besides the ‘high fear’ diseases such as cancer, there was a reference to microwave sickness (reference provided). The Radar report is available to subscribers: (3 pages) 1#2 1