Preparation of a hygienist s legal reports for asbestosinduced. Robin Howie, Robin Howie Associates, Edinburgh

Transcription

1 Preparation of a hygienist s legal reports for asbestosinduced disease cases Robin Howie, Robin Howie Associates, Edinburgh

2 Preparation of a hygienist s legal reports Adrian has outlined the duties of report authors in England & Wales. The duties in Scotland are basically the same, but are not formally so defined.

3 Preparation of a hygienist s legal reports This presentation outlines my approach to preparing reports for asbestos-induced disease cases.

4 Background Over the past about 15 years I have been involved in over 470 legal cases; about 80% of which involved exposure to asbestos.

5 Background I have given evidence in only one asbestos case (in the Court of Session).

6 Instructions received My Instructions generally require estimates of one or more of the following: Pursuer s likely exposure to asbestos; Employer s Duty of Knowledge of risks from asbestos;

7 Instructions received Steps the employer should have taken to prevent/minimise exposure. In some cases I am instructed to comment on the defender s hygienist s report.

8 Instructions received For mesothelioma cases estimates of risk may be required where the pursuer may have been exposed to asbestos with two or more employers. For asbestos-induced lung cancer and asbestosis cases estimates of risk are generally required.

9 Questions to answer Did the pursuer work with or in the vicinity of materials likely to have contained asbestos? If so, what type(s) of asbestos? What work did he undertake with such materials?

10 Questions to answer How much time did he spend doing such work? Was he warned of the dangers from asbestos? Was he provided with a respirator, and if so, was he properly trained in its use?

11 Questions to answer Was he provided with control measures, such as damping or ventilation? How well ventilated was his workplace? Were any members of his family likely to have taken asbestos into the family home on their clothing and/or bodies?

12 Identification of ACM Cape Asbestos and Turner & Newall publications, e.g. Cape Asbestos Story (1953), Asbestos in the lagging trades (1967), Submitted Written Evidence (1978) Trade catalogues; Occ Hyg publications;

13 Identification of ACM Editorial texts and ads in Specification annuals; Ads in Directory of Shipowners ; Some shipping books contain detailed information MDHS100/HSG264 AIC website

14 Estimate of exposure

15 Estimate of exposure For most mesothelioma cases estimates of likely exposure levels only are required. For lung cancer and asbestosis cases estimates of cumulative exposure are required.

16 Estimate of exposure I have never been presented with direct individuals exposure data. It is therefore necessary to infer likely exposure levels from the pursuer s statement and from published sources.

17 Estimate of exposure Does the pursuer s statement define what job(s) he did with asbestoscontaining materials? Does he comment as to the severity of exposure, e.g. I couldn t see across the room, I was covered in dust, I could see the fibres in the air, My handkerchief was black when I blew my nose

18 Estimate of exposure If estimates of cumulative exposure are required does his statement identify how often and for how long he did such work?

19 Estimate of exposure Sometimes the pursuer is available, but expecting someone who may just have been handed a death sentence to remember fine detail about what he did years previously may be unreasonable!

20 Estimate of exposure Qualitative data can be obtained from: Stewart & White (1954)

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23 Estimate of exposure Likely quantitative exposure levels for some tasks can be obtained from: Leathart & Sanderson (1963) Harries (1968, 1971) TDN42/EH35 (1968*, 1973, 1975, 1989)

24 Estimate of exposure Submitted Written Evidence (1978) Simpson (1979) HEI (1991) Howie et al (1996) CRR112/1996 HSG213 (2001)

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27 Estimate of exposure Fibre levels measured using the earlier membrane filter techniques are lower than would be measured using post-c1990 techniques.

28 Estimate of exposure Simpson (1979) noted that by that date improvements would have increased pre-1969 counts by a factor of 2-3 and that 2 f/ml of chrysotile measured in 1968 would then be measured as 4-10 f/ml.

29 Estimate of exposure Rickards (1994) suggested that early membrane filter results would be increased by factors of 2-8 if then re-measured.

30 Estimate of exposure Estimates based on pre-1994 data should be increased by the relevant factors to take account of measurement technique development.

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32 Duty of knowledge

33 Duty of knowledge A reasonable employer could have obtained knowledge from: legislation and regulations; HMFI/HSE correspondence, publications and reports; occupational medicine and occupational hygiene journals and publications.

34 Duty of knowledge The duty to comply with the law is absolute. Every employer should have been fully aware of all legislation and regulations which applied to his undertaking and and should have complied with all relevant duties imposed therein.

35 Duty of knowledge Legislation: Factories Act 1937 Factories Act 1961

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38 Duty of knowledge Regulations: Asbestos Industry Regs 1931 Building (Safety, Health & Welfare) Regs 1948 & onwards Shipbuilding Regs 1960 Asbestos Regs 1969 Control of Asbestos at Work Regs 1987 & onwards

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42 Duty of knowledge HMFI/HSE publications: Annual Reports of HM Chief Inspectors of Factories Correspondence Guidance documents Reports

43 Duty of knowledge A passage in the Annual Report of HM Chief Inspector of Factories for 1938 commented that: It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous.

44 Duty of knowledge In the Jeromson & Dawson judgment Recorder Machell commented regarding this passage that: In my judgment, a reasonable employer would and should have read this passage and noted the potent description of asbestos dust.

45 Duty of knowledge That is, a reasonable employer is expected to have read the Annual Reports of the HM Chief Inspectors of Factories.

46 Duty of knowledge Over the period about the Annual Reports provided about annual data on deaths due to asbestosis and commented on such data. For example:

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51 Duty of knowledge From the Annual Reports a reasonable employer would have been aware that exposure to asbestos could cause: By latest date Disease 1940 Asbestosis 1950 Lung cancer 1964 Mesothelioma

52 Duty of knowledge From the Annual Reports a reasonable employer would also have been aware by about 1950 that asbestotics died an average of about 15 years younger than silicotics.

53 Lack of bias Adrian has commented that the expert must be neutral and that a reputation is more easily lost than gained.

54 Lack of bias See the comments of Machell (1997) on pages 9-11 in the Jeromson & Dawson Judgment regarding the evidence of an expert for the Defence in these cases.

55 Lack of bias If instructed to comment on the opposition expert s report are any relevant legislation or Regulations omitted; check the validity of the references cited: are they up-to-date; are any critical references missed out or misrepresented?

56 Lack of bias For example, if a defence risk estimate is based on the HEI (1991) model, ask why this model has been used rather than, say the Hodgson & Darnton (2000) or Berman & Crump (2003) models.

57 Lack of bias The HEI model predated the Sluis- Cremer papers on South African amphibole miners and the later papers on Wittenoom and the Quebec data were from a 1980 paper. The HEI model therefore predicts lower risk than later models; particularly so for mesotheliomas caused by exposure to amphiboles.

58 Lack of bias If the author has a sound scientific reason for not using the later models, such as Berman & Crump s model being based on TEM data and a non-standard definition of a fibre, such reason(s) for not using the model(s) should be given.

59 Lack of bias The selection of a risk model which knowingly presents a lower estimate of risk than later models strongly suggests bias to me if such lower estimate is beneficial to the report writer s client.

60 Lack of bias My favourite comment in a defence report related to the case of Mr. A who was employed with Company X between about /3 and who was diagnosed with mesothelioma in about 1994.

61 Lack of bias The defence expert commented that the latent period between exposure and development of mesothelioma is usually between years and concluded that the critical exposure occurred between 2 and 16 years after his employment with X

62 Lack of bias The same expert has never addressed the duties imposed by the Factories Acts 1937 and 1961 or the Building Regs 1948 onwards or the Shipbuilding Regs 1960.

63 Lack of bias The same expert has never addressed the duties imposed by the Factories Acts 1937 and 1961 or the Building Regs 1948 onwards or the Shipbuilding Regs 1960.

64 COMMENTS? QUESTIONS?