The following Disease/conditions have attracted research/review papers commissioned by the IIAC yet have failed so far to meet the criteria to allow prescription.
Breast cancer caused through (night) shift work
Position paper No 25 identified the possibility of the elevated risk of breast cancer associated with over 20 years of night shift work.
The IIAC review of epidemiological evidence concluded that even 20 years of such work gave rise to nothing more than a moderately elevated risk. Research was prompted by Denmark's prescription following an epidemiological study of Housen . Please note that in Denmark a disease will be prescribed if there is a possible causal link established with occupation rather than the IIAC's two stage criteria.
Whilst 'group' litigation remains a possibility, it is considered unlikely that:
- Causal links would be established given other elevated risk factors; genetic, smoking history, menopausal lateness etc.
- Employers would be held in breach of their 'duty of care' given the absence of HSE guidance to employers identifying risk factors and exhorting specific action by them.
Potential risk for litigation: Low.
Ischaemic Heart Disease caused through shift work
IIAC conclusion: Insufficient evidence to show a doubling of the risk. Not recommended for prescription.
HSE does not presently regard the evidence of shift work and ischaemic heart disease or breast cancer as such that "employers should be asked to do more to protect the health of shift workers as is already required under the Working Time Regulations (1998) and the HSE guidance note, HSE 256 "Managing shift work and fatigue".
The absence of:
- Epidemiological evidence to support a link, combined with risk factors likely to be present in individuals; for example lifestyle, diet and smoking means it is unlikely that an occupational link will be established.
- HSE guidance regulation governing shift work is limited to managing fatigue and hours worked.
Potential risk for future litigation: very low.
Parkinson's Disease and Pesticides
IIAC position paper February 2008 did not recommend prescription due to the absence of evidence of doubling of risk. Doubt expressed that certain pesticides could cause disease.
Although certain pesticides are recognised carcinogens and known to cause a variety of respiratory conditions, an established link with Parkinson's appears either doubtful or several years away. Any cases brought now are likely to fail to establish an occupational link, albeit where exposure is established, a breach of duty or foreseeability defence is unlikely to assist Defendants.
Potential risk for future litigation: low to moderate.
Lung cancer and factory workers
IIAC position Paper 29 concluded that there was insufficient epidemiological evidence to demonstrate a doubling of risk. Review paper did demonstrate an elevated risk in core box operators and restricted groups of foundry workers but the results were described as fairly inconsistent.
The principle cause of lung cancer is smoking (90%). In respect of historical exposure, claimants are likely to show elevated personal risk factors which may obfuscate any firm attribution to occupational exposures. As smoking rates continue to drop in the UK, a clear picture may well establish itself in respect of employees exposed from 1990's. Foundries employ increasingly fewer.
Potential risk: One to watch. Moderate.
Laryngeal cancer and inorganic mists containing sulphuric acids
IIAC Position Paper Number: 26. Insufficient evidence to show doubling of the risk (only demonstrated in one United States epidemiological study).
Industries affected: primary chemical production, steel pickling and manufacture of lead batteries and fertilisers.
Limited number of employees employed in industries considered most at risk – i.e. only 75-150 workers employed in lead acid battery manufacture.
Such industries are more likely to give rise to incidents of other types of respiratory disease. Laryngeal cancer is rare and causation is likely to be linked to smoking, alcohol consumption.
Potential for litigation: low.
Occupational voice loss
IIAC was prompted by anecdotal evidence suggesting increased number of teachers were seeking help for voice disorders. TUC 'Hazards' publication had identified journalists "communication workers" and Barristers (!) as being 'at risk'.
Conclusions reached suggest there is a lack of workable case definition of 'occupational voice loss' and insufficient epidemiological evidence to suggest doubling of risk, albeit teachers in small number of studies shown to have an elevated risk.
IIAC review highlights fundamental difficulty in even establishing a workable definition. The condition is likely to present in varying forms – shortness of breath. 2 cases of 'complete' voice loss recorded. Query whether psychological factors are at play here.
Potential risk: Low. Unlikely to be coming to a court room in the UK soon.
Back and neck pain (generic)
IIAC Position Paper Number 18. Not recommended for prescription. Such are symptoms, not diseases and which are commonly felt by 60% to 80% of the population regardless of the occupation.
Main barrier to any successful claim will be one of diagnosis. It is felt unlikely that generic back or neck pain which is not linked to any specific incident or cumulative period of lifting will ever be deemed to put an employer in breach of duty.
Potential risk: very low.
Whole body vibration
Whole body vibration is transmitted through the seat or feet of employees who drive mobile machines over rough and uneven surfaces as a principle component of their job. It is accepted that large shocks and jolts may cause health risks including back pain. The HSE recognise that work factors such as posture and heavy lifting are also recognised contributors to back problems and that "further research is needed in this area". The Control of Vibration at Work Regulations (2005) imposes for the first time two limits:-
- An exposure action level of 0.5 ms2 in respect of whole body vibration and
- An exposure limit value of 1.15 ms2 (which should not be exceeded on any daily vibration dose).
The HSE guidance "Control of back pain risks from whole body vibration" advises that specific requirements are not required on the part of employers as "most machine and vehicle activities will produce daily exposures below the limit value". Constructing, mining and quarrying drivers are at risk – in particular earth moving vehicles and digger truck drivers.
Risk of litigation:
We have seen only a handful of claims in the last 15 years, most of which present "from the Claimant's perspective" with difficulties on causation grounds due to the Claimants having co-existing constitutionally or idiopathically arising conditions.
We are also aware of three other "train driver" cases which were pursued on the basis of both whole body vibration exposure and poor ergonomic posture arising from a particular class of locomotive.
Whilst there remains the potential for "class actions", particularly amongst quarrying and construction workers, the claims per se have intrinsic difficulties in causation terms and are likely to engender a reluctance on the part of Claimant advisors to pursue such claims.
Potential for litigation: low to moderate.
Welding fume and chronic obstructive pulmonary disease
Knox v Cammel Laird (1990) was a series of test or representative cases brought by shipyard welders who were exposed to various types of fume given off by the MIG and TIG welding processes. Although industry specific, Mr Justice Simon Brown held that the employer's date of knowledge/date for action was 1951. Damages were however apportioned/reduced to take into consideration pre guilty date of knowledge exposure (i.e. exposure prior to 1951) and for the contribution made by individual smoking habits.
Historically employees have the protection afforded by the Factories Act 1937 and 1961 and since 1989 by the COSHH Regulations.
10 Chronic pain and fibromyalgia - the new "RSI"?
Concerns have been highlighted recently that chronic pain, fibromyalgia cases may feature as "the new RSI", claims for which reached almost epidemic proportions in the UK in the early to mid 1990s (having previously enjoyed a fruitful few years of civil litigation in Australia under the sobriquet "Kangaroo Paw").
Chronic pain cases share many similarities with "RSI" claims, not least in that they generally involve disaffected individuals who focus their disappointment either in their personal or occupational grievances through a preoccupation in illness behaviour or the litigation process.
We would point out that such claims are not specific to "upper limb disorders" or cumulative lifting cases but across the board both following RTA accidents and single incident employers/public liability claims.
Our experience suggests that the majority of these Claimants have previously presented illness behaviour prior to the index event in the form of one of the following:
- Excessive attendances upon Doctors.
- Hypersensitive behaviour towards family and colleagues.
- Demonstrable history of psychological/psychiatric symptoms.
The difficulty for employers/insurers is effectively two fold:
- Determining which individual is at risk of becoming the next "chronic pain case" and
- That English Law takes the victim as he finds him, namely that if that individual is psychologically or physically more vulnerable, the Defendant is not entitled to take that vulnerability into account.
Whilst recognising that chronic pain/fibromyalgia cases will not present with the type of frequency that we saw with the "RSI" epidemic of the early 1990s, such cases when successful do sound high in damages awards as in most cases, employment is entirely compromised.
The challenge for employers/insurers is to establish a risk management solution rather than the present method of "distressed product", namely lawyers and litigation.
We suggest that there may be mileage in seeking to develop some form of "hypersensitivity testing" in conjunction with a group of medical experts for new employees which would involve a more detailed analysis of medical and psychiatric background.
Cadmium and genito urinary cancers
Considered by IIAC position paper number 24 which considered there to be insufficient evidence to support prescription. Cadmium is stored principally in the liver and kidneys and is present in food, "particularly in areas of high industrial activity." Highest risk factor for genito urinary cancers is smoking and these cancers are relatively common in the general population. In manufacturing industry, exposure most likely to follow copper cadmium alloy workers and iron and brass foundry workers.
Unlikely to feature significantly in new claim notifications, given difficulties in attributing exposure to causation.
Beryllium and lung cancer
Considered by the IIAC in Position Paper 27. Beryllium is a very light but hard metal. Copper beryllium alloys are used extensively in the aerospace, telecommunications, computer, vehicle, and oil and gas industries.
The IIAC research failed to establish a doubling of risk save where workers suffered a very rare acute form of disease – berylliosis and therefore it was not considered appropriate for prescription.
Whilst historically higher exposures may have occurred, insurers may draw comfort from HSE research that suggests that in 12 studies within industry general exposure levels were <0.1ug/m3 where the workplace exposure limit is 2ug/m3.
Skin cancer and passive smoking (COPD and cancer)
Although ten years ago both were considered to be likely areas of potential and costly future litigation we have seen in practice almost negligible levels of claims in both areas.
Much publicity was given in 1993 to an out of court settlement reached by Stockport Council in respect of a white collar employee exposed to secondary smoke from fellow office workers. A small number of actions were started and then abandoned principally due to causation difficulties. No serious attempt has been made since by those on the Claimant side to pursue actions. Prompt legislation introducing designated smoking areas in the workplace (effective from January 1996) also did much to lessen the potential for litigation. Ironically, the link between secondary smoke and respiratory illnesses, cancers has strengthened in the intervening period.
Although described by the HSE as being the most commonly diagnosed form of cancer (40,000 new cases each year), workplace claims are rare. The HSE provided guidance in 1998 to employers who employ 'outdoor workers' entitled "Keep your top on", which means any date of knowledge Defence is unlikely post 1998. Establishing causation will be the principal difficulty for Claimants. Local authorities and construction firms are the employers most at risk in this field.
Diesel fumes and Cancer
Has received greater prominence following the publication of the WHO's press release in 2012, that diesel fumes are now listed officially as a probable cause of lung cancer and an increased risk of bladder cancer (Group 1 classification). ]
It is worth noting that from 1988, diesel fumes was categorised as "probably carcinogenic" (Group 2A). Given the widespread use of diesel in internal combustion engines which power the majority forms of transport, the potential pool of those affected is vast.
In an EL/PL context, the most likely individual at increased risk would appear to be those working in the transport industry/loading docks/warehouse.
Despite the reclassification in 2012, claims remain modest in number, and are likely to be difficult to prove in causation terms, given the requirement to establish that the occupational exposure has doubled the risk of developing cancer, compared to other factors – notably smoking.
The potential for future litigation remains modest.
Coal tar, bitumen and cancer
Although Coal tar is a recognised carcinogen and has been for some time (there is a suggestion that chimney sweeps demonstrated an increased risk of scrotal cancer in Dickensian times), its principal use was as a binding agent in road construction and waterproofing. Post 1945, coal tar was increasingly replaced by bitumen tar which has an entirely different chemical composition (it is distilled from crude oil, not from coal). The IARC considered a large epidemiological study (in 2001) of 80,000 construction workers. They concluded there were no increased mortality rates but some evidence of an elevated risk of lung cancer. Further research published in 2009 by the IARC ultimately concluded there was no evidence to show an elevated rate of lung cancer in bitumen exposed workers. Despite a long latency it is unlikely we will see significant numbers of claims for coal tar workers. The absence of a defined causal link with bitumen suggests that future claims are unlikely amongst construction workers.
Diseases not yet on the radar … ones to watch
Bacterial type infection which has been linked with the fatalities of 4 babies at a hospital in Northern Ireland which has raised its profile.
Similar to legionella in that it proliferates in water systems, soils. A communicable disease.
Estimated 90,000 cases a year and thought to be a complication of lung disease arising from smoking, dusts, TB, pneumonia, bladder infections.
Standard treatment is with biocides though anecdotal evidence suggests that they soon develop the resistance to chemical attack. Suggestion that use of multiple biocides may be more effective.
Anticipated that in EL/PL cases, potential exposure may be modest though 'property' risks most likely to be affected as heating systems can/will be damaged by unchecked growth of bio fluid in loop systems leading to replacement of system earlier than expected.
ii. Vibration white foot
Risk identified following the publication of the epidemiological study by House and Others (Occupational Medicine 2011 Volume 61) which identified that severe vibration white finger (HAVS) cases had a matching vasospasm in the foot induced by cold.
It is of concern as 26,000 miners' scheme cases received damages at over £20,000 with a large pool of potential Claimants.
Intelligence suggests several claimant firms are watching developments very carefully.
iii. Manual handling and heart disease
Limited studies show an increased risk of heart disease is demonstrated in those undertaking manual work leading to an 'aerobic strain theory'. One to watch.
iv. Glioma and acoustic EMFS
World Health organisation report of 31 May 2011.
Electromagnetic field radiation (EMFS)
Exposures to higher levels of EMF radiation already subject to international guidelines at higher levels, current debate is whether long term low level exposure can evoke biological responses.
WHO's conclusion comes after 25,000 articles published over 30 years and the conclusions of "possible" risk is a response to "some gaps in knowledge and (the) need for further research".
However, to date, a link between low level symptoms, effect on pregnancies and EMF exposure is "not supported".
Increase in risk of cancer if it exists is extremely small.
WHO – International Agency for Research on Cancer revised its classification upwards of the risk that radiofrequency EMFS could possibly be carcinogenic to humans based on an increased risk of glioma (brain cancer) associated with wireless phone use.
Global mobile phone prescription is estimated at 5 billion globally. Medical statistics suggest in 2008 there were > 250,000 new cases of brain cancers of which 2/3rds were gliomas.
Described as the biggest engineering innovation since the industrial revolution. In light of the asbestos experience, concerns linger over latency and adverse long term health effects. Almost all cosmetic manufacturers utilise nanotechnology. The world market is £80 million in 2012 and growing.
Examples include titanium dioxide and zinc oxide in sunscreen, "nano silver" in deodorant and "nano gold" in toothpaste. Also used in medical and engineering processes.
Nanoparticles can easily gain access to bloodstream via osmosis or inhalation and then transported to organs. Studies in mice have shown tissue inflammation and inhibition of cellular growth, possibly causing destruction of DNA.
"Insufficient evidence on a number of workers exposed to nano materials in workplace or the effects on human health of such exposure."
European Agency for Safety and Health at Work.
Use of nanotechs has been regulated in cosmetics in the EU from July 2013.
Difficulty will be for Claimants in establishing causation and most likely to present as a product liability claim than EL.
Given widespread use in occupational and domestic settings, then has potential if studies ultimately reveal delayed health effects. One to revisit in 2 years.