Hidden dangers ruin lives
Judith Gledhill, Thompsons’ head of personal injury, explains the difficulties of proving the impact of invisible fumes at work
Many workers are unwittingly being exposed to hazardous substances through breathing in fumes at their workplaces.
Fumes from noxious chemicals can cause a variety of diseases including bladder cancer, lung disease and damage to internal organs.
Fume exposure compensation claims are among the most complex and challenging cases that a personal injury lawyer encounters. Not only is it necessary to prove that the employer is liable for the exposure, but also that the exposure caused or made a material contribution to the development of the disease.
What legal protection does a worker have?
Exposure to fumes at work is covered by the Control of Substances Hazardous to Health Regulations (COSHH). The definition of what amounts to a substance “hazardous to health”, is extremely wide and includes: solvents, oils, dust, hair dyes, pesticides, paint and other material containing chemicals.
COSHH Regulation 7 states that every employer shall ensure that the exposure of employees to substances hazardous to health is either prevented or, where prevention is not reasonably practicable, adequately controlled.
Regulation 6 says every employer must carry out a risk assessment before permitting any employee to carry out work where employees are exposed to substances hazardous to health.
This appears straight forward. It is clear that employers must carry out risk assessments and either prevent the fume/chemical exposure or provide sufficient personal protective equipment (PPE) to prevent or minimise exposure to the lowest level possible.
But many employers faced with claims deny liability on the basis that they took reasonable steps to prevent exposure to the hazardous substance, that the exposure to the substance was within relevant exposure limits and that there were other causative factors resulting in the development of the disease.
Proving liability and causation
It is down to the claimant – the person made ill by the exposure – to prove that their employer was negligent or in breach of their legal duties and that, as a result, they developed a disease.
Causation and liability need to be established. That means obtaining the evidence to prove that it was the exposure to the fumes or chemicals at work that caused the disease, and also that the employer was liable for that exposure taking place.
Proving causation can be complicated. Some diseases are caused by numerous factors, not all of them occupational. For example there is a known association between bladder cancer and cigarette smoke. Many workers who were exposed at work to chemicals such as beta-naphthylamine, which are capable of causing bladder cancer, also smoked cigarettes.
Proving whether it was the smoking or the beta-naphthylamine that caused the bladder cancer involves significant investigative work. Scientific and medical research papers need to be studied, documents obtained from the defendants and evidence has to be commissioned from a variety of experts on the disease.
Establishing liability also involves gathering evidence in the form of reports from expert medical witnesses, consultant engineers, chemists and other experts with specific knowledge of the chemical substance and the impact it can have on the human body.
These experts will consider how the claimant was exposed, the extent of the exposure and the PPE and other safeguards the employer did or could have provided to comply with their legal obligations. Reference will frequently be made by the expert to relevant research papers and studies.
A major difficulty is that exposure to fumes and similar substances has often taken place over a number of years. So the claimant has to provide information about work processes and substances used going back twenty to thirty years. Witnesses may have disappeared, trade names for the substances may have changed and product information sheets may no longer be available. It is therefore vital that experts with a detailed knowledge of the work process and chemicals used are instructed.
Thompsons acted for Tom Owenson. Mr Owenson was employed with a firm of printers, initially as a maintenance engineer and subsequently as a printer. As a maintenance engineer he was employed in the solvent recovery plant where toluene was “recovered” from the air taken away from the printing presses by large extraction units. This air was heavily contaminated with toluene.
Mr Owenson’s work included carrying out running repairs, dealing with breakdowns and repairing a solvent filter bank.
He confirmed that, when he worked on the solvent recovery plant, there was always a strong smell of toluene. When working on certain processes, he would frequently experience dizziness, feel giddy and his eyes would smart from the smell of the solvent.
These symptoms are indicative of excessive toluene exposure.
In 2000, Mr Owenson started to feel unwell. He saw his GP and was referred to a consultant nephrologist who examined him, recorded details of his exposure to toluene and concluded that, while he was suffering from kidney disease, it was not a type related to toluene exposure. The consultant said it was safe for Mr Owenson to continue working as a printer with continued exposure to toluene vapour.
Mr Owenson continued to work and continued to experience fatigue and muscle cramps. He was referred to Thompsons by his trade union in 2001.
Expert evidence was commissioned from a consultant nephrologist with expertise in kidney damage caused by toluene exposure. In his opinion, the toluene had had a major effect on Mr Owenson’s kidney function and advised Mr Owenson to minimise his exposure to toluene.
Mr Owenson stopped work and was eventually granted ill health retirement.
A compensation claim made to his former employer was met with a blanket denial of liability. They denied that they had exposed Mr Owenson to excessive levels of toluene and that the toluene had caused or made worse his kidney disease.
After reports were obtained from occupational chemists and hygienists, the defendants conceded that, from time to time, they had exposed Mr Owenson to hazardous levels of toluene.
Notwithstanding this concession they continued to deny that the exposure had caused or contributed to the development or worsening of the kidney disease. This was never conceded and was subject to an intense battle and the need to rely on numerous experts on both sides.
Reports were obtained on Mr Owenson’s behalf, from experts both from the UK and abroad, who provided evidence that exposure to toluene could cause or make any pre-existing kidney damage much worse.
Significant reliance was placed on the results of studies carried out to consider the evidence of links between the development of kidney disease and toluene exposure.
The defendants obtained evidence from experts with a different opinion who relied on the results of different studies. Eventually, after a lengthy legal process, Mr Owenson’s case settled for a considerable sum in November 2008.
Knowledge about the dangers of different chemicals is constantly changing and developing. Claims involving “Gulf War Syndrome” are based on claimants alleging that they have developed a variety of symptoms from the cocktail of drugs that they were given prior to being dispatched to the Gulf.
Proving that the claimants’ symptoms are related to and have been caused or contributed to by a particular drug or a cocktail of drugs is difficult.
Many workers who have previously been exposed to hazardous substances may not link their disease with exposure to substances at work. Medical practitioners may not ask questions about occupational exposures to chemicals when confronted with bladder cancer, kidney disease or other illnesses. It is, however, extremely important that, when such a disease develops, thought is given to historical working practices and exposure to chemicals and other substances in the work place.
Exposure to vapours and fumes from chemicals at work can cause long-term adverse health problems. These dangers really are “hidden” and the consequence of exposure are sometimes not seen for many years.