Negligence | Thompsons Solicitors

Empty shell

For a claim of negligence to succeed against an employer, claimants have to be able to show (among other things) that their employer did (or did not do) something that caused the injury or disease

A soldier who developed a skin cancer, which he said was caused by picking up depleted uranium, failed recently in his claim of negligence. The Judge concluded that, on the balance of probabilities, it was more likely to have been caused by over exposure to the sun.

The soldier asked Thompsons to represent him, which we agreed to do even though it would be a difficult case to pursue.

Basic facts

W served in the Army for 15 years, including spells in Cyprus and Australia as well as an armaments research operation in Kirkcudbright in Scotland, where he worked between 1984 and 1987.

This site contained a number of ranges where armaments, including depleted uranium (DU), were tested. When the DU rounds were fired, some fell on the ground and had to be cleared by teams of soldiers, including W.

When picking up the DU, W said that although he wore a dosemeter, he was not issued with gloves and was not given any instruction or training about working with such a hazardous substance.

He subsequently developed a cancer on the side of his nose which he said was caused by touching his skin with his hand or finger, either of which could have been contaminated by DU. His employer, the MoD, argued that it was caused by exposure to sunlight.

The arguments

W argued that:

1.  That because the skin on the side of his nose was particularly thin, it was more easily contaminated than other parts of his body

2.  That his particular type of skin cancer was less likely to be caused by exposure to the sun than other types

3.  That the side of the nose was less likely to be exposed to ultra violet (UV) rays from the sun than other parts

4.  That he had a dark complexion and was therefore less at risk of developing skin cancer from UV exposure

5.  That during his time at Kirkcudbright, he suffered from short lived acute inflammatory conditions of the throat and right eyelid which, in his expert’s opinion, could be attributed to DU contamination

6.  The fact that he was young was relevant

For its part, the MoD pushed the link with exposure to sunlight, arguing that:

1.  W worked out of doors for most of his working life in all weathers, including sunlight

2.  When he worked outside he wore a beret, which did not provide his face with any protection from the sun; and sun protection was not as common as now

3.  When serving in Australia he was stationed in areas where skin cancer was very common

4.  The experts agreed that, at the very least, sun exposure played a part in the development of his skin cancer

5.  The link between sun and skin cancer was well documented

6.  The doctors treating him thought sunlight was the likely cause

7.  He suffered from a common cancer.

Conclusion

From the evidence, the Judge ascertained that, during the time he spent at Kirkcudbright, there were very few incidents that gave cause for concern in relation to contamination. In any event, W had worked on a very occasional basis (no more than 15 times) on the range when DU rounds were fired. But a risk still existed (however low) and it was therefore foreseeable that W could be injured. But what caused his injury – was it contamination or exposure to sunlight?

Although W could not remember wearing gloves, the Judge said that it was more likely than not that he was issued with gloves along with a personal dosemeter. He concluded, from the evidence available, that W would have been aware (if only in general terms) that there was some risk of contamination if he did not wear them and/or if he were to bring the gloves into contact with his skin.

As for exposure to the sun, the Judge concluded that this was a major contributory factor to his cancer.  Although W could not ever remember being sunburnt, the judge thought it inconceivable that he would not have been, given that he had spent most of his time in the army outside, and much of it in hot climates during the 1970s and 1980s when there was little awareness of sun protection.

By comparison, the risk of developing skin cancer from DU contamination was no more than a few per cent. Nor was there any evidence to suggest that W had an unusually thin skin which made him particularly susceptible. He concluded, therefore, that UV radiation was “by far the more probable explanation”.