Legal action by those suffering adverse health effects from telecom installations

Can we claim compensation if we suffer ill health as a consequence of being subjected to emissions from telecom installations? Planning Sanity gets asked this question on a daily basis, yet it is really a difficult question to answer definitively, the answer in theory is yes. The problem is that there are many other aspects to the equation such as:-

• has the developer/landowner failed to take all reasonable precautions to prevent the adverse effect that has contributed to the ailment?
• is there another potential source of EMF emissions that could have triggered the adverse effect/ailment?
• is there as a fact an adverse effect from the emissions that could cause/contribute to the effects of the specific ailment?

Therefore it is important that cases (at least the early cases) are soundly researched, and that the evidence is overwhelming, that ill health is being suffered as a consequence of the effects/emissions from a telecoms installation (it does not matter whether it is the specific installation, providing that installation could have contributed to the effect), and that the developer (Operator) has acted negligently (or failed to take all reasonable precautions) in not taking action to prevent the emissions that have caused/contributed to your ill health (more on that below). If those tests are satisfied then a claim might be capable of being successful, although in reality Planning Sanity are not convinced that a case can be made out that could be applied generally to those suffering ill health effects, but with special cases there might be a greater chance of success.

Due to the complex legal arguments that would need to be run in a case of this nature Planning Sanity would urge all potential litigants to first seek specialist legal advise before embarking on a challenge. The last thing that we as an organisation want to see is ill thought out cases being taken forward that result in bad law being made that would then have a detrimental affect on all challenges that are made afterwards. See Specialists Forum for a list of solicitors. You should also check out the court cases we list in the reference section below.

One of the biggest problems against instigating a case until recently was the need to prove that the specific cause of the ailment came from an identifiable source, that has now been resolved in a number of asbestos cases, a good example being that of FAIRCHILD v GLENHAVEN [2001] EWCA Civ 1881 (This judgement includes the Pendleton decision). This was a compilation of 6 appeals in the same judgement, we shall deal with most of them, but for now we look at the very interesting and novel route to gain judgement now, as opposed to when a perceived illness becomes confirmed. This proposal certainly has not been looked at in relation to telecoms, or high powered cables, it will be interesting to see what the courts might make of it. The basis is that a claim is lodged as to the future prospects of contracting an illness, where first provisional damages are awarded, and then the case has to be kept open indefinitely, on the basis that the claimant may become ill in the future, that is an over simplification.

The proposal as the judge put it in Pendleton would be based on the proper interpretation of section 51(1) of the County Courts Act 1984, which is in the same terms as section 32A(1) of the Supreme Court Act 1981, that is:-

• "51(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition."

The procedure now being incorporated into Part 41.2(1)(b) of the Civil Procedure Rules (CPR)

The question within this context is what is the realistic prospects of the claimant contracting the stated ailment within some definite, or indefinite period (which could be set as the lifetime of the Claimant). Thus the claim is for provisional damages based on that proposition, coupled to the later reopening of the case if the Claimant does as a fact contract the ailment. Someone might say surely it is better for the person to simply wait until the ailment is actually present, and that is a good question, but as the asbestos cases demonstrate, when some 30 or 40 years later the ailments becomes apparent, the chances are that the companies originally responsible have ceased to exist, or at the very least those involved with the knowledge to put weight on the case have either retired or have died. In those circumstances the only chance of compensation would be from successor companies or land owners/occupiers of in our case the installations, and that is fraught with problems, which we discuss below. Therefore if the case is opened early, and remains live, if not active, then all the relevant depositions would have been taken, the courts then have a record of the early stages of the potential ailment, and could then rely on these to help determine the case. The potential case therefore relates in the first instance to any present symptoms that a Claimant has, and finally to the eventual ailment that it is believed might be contracted.

This briefing is not written as a statement of the health effects from EMF, but as an indication of the potential claims that might be run in the courts, thus references to ailments are general statements as illustrations and not as factual ailments that would enable a case to be taken forward. Keeping things simple, let us say that the Claimant is suffering from headaches, nausea, sleeplessness, loss of concentration and other minor ailments, but that there is a genuine believe, backed by scientific evidence that continued exposure to EMF will result in melatonin levels being reduced, and due to the reduction of this natural protection cancerous cells are likely to develop. The claimant would therefore file a simple case for damages for the ailments that they are already suffering, plus a claim under Rule 41 of the CPR for provisional damages due to the potential for contracting the more serious ailment in some years time, and for the case file to be kept open.

CPR Rule 41 sets out that:-

• 41.1(2)(c) 'award of provisional damages' means an award of damages for personal injuries under which -
  (i) damages are assessed on the assumption referred to in SCA s.32A or CCA s.51 that the injured person will not develop the disease or suffer the deterioration; and
  (ii) the injured person is entitled to apply for further damages at a future date if he develops the disease or suffers the deterioration.

  41.2(2) An order for an award of provisional damages -
  (a) must specify the disease or type or deterioration in respect of which an application may be made at a future date;
  (b) must specify the period within which such an application may be made; and
  (c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.
  41.3(6) The rules in Part 25 about the making of an interim payment apply where an application is made under this rule.

CPR Practice Direction 41 reiterates many of this points, and includes a useful list of what a judge must take into account:-

• 2.1 When giving judgement at trial the judge will:
  • (1) specify the disease or type of deterioration, or diseases or types of deterioration, which
    • (a) for the purpose of the award of immediate damages it has been assumed will not occur, and
      (b) will entitle the claimant to further damages if it or they do occur at a future date,
    
    (2) give an award of immediate damages,
    (3) specify the period or periods within which an application for further damages may be made in respect of each disease or type of deterioration, and
    (4) direct what documents are to be filed and preserved as the case file in support of any application for further damages.
  
  2.2 The claimant may make an application or applications to extend the periods referred to in paragraph 2.1(3) above.
  2.3 A period specified under paragraph 2.1(3) may be expressed as being for the duration of the life of the claimant.
  2.4 The documents to be preserved as the case file ('the case file documents') referred to in paragraph 2.1(4) will be set out in a schedule to the judgement as entered.
  2.5 Causation of any further damages within the scope of the order shall be determined when any application for further damages is made.
  2.6 A form for a provisional damages judgement is set out in the Annex to this practice direction.

The form of the order that the judge should make if finding in favour of the Claimant is set out in CPR Practice Direction 41:

• THIS CLAIM having been tried before [title and name of judge] without a jury at [the Royal Courts of Justice or as may be] and [title and name of judge] having ordered that judgement as set out below be entered for the claimant
  
  IT IS ORDERED -
  
  (1) that the defendant pay the claimant by way of immediate damages the sum of £............... (being (i) £.............. for special damages and £............. [agreed interest][interest at the rate of ...... from...........to............] (ii) £.............. for general damages and £.............. [agreed interest][interest at the rate of 2% from......... to...........] and (iii) £............... for loss of future earnings and/or earning capacity) on the assumption that the claimant would not at a future date as a result of the act or omission giving rise to the claim develop the following disease/type of deterioration namely [set out disease or type of deterioration]
  
  (2) that if the claimant at a further date does develop that [disease][type of deterioration] he should be entitled to apply for further damages provided that the application is made on or before [set out period]
  
  (3) that the documents set out in the schedule to this order be filed on the court file and preserved as the case file until the expiry of the period set out in paragraph (2) above or of any extension of that period which has been ordered
  
  (4) (costs)

From all of this it is clear that a case must be kept on file indefinitely, with the ability to have it re-opened at some future date. Of course none of this means that if a Claimant is sufferin ill effects today that they should not proceed to trial today, but as many of the potential ill health effects are unlikely to be seen to develop for some considerable time, those that are believed to be ultra sensitive to emissions should look to protect them selfs against some future ailment, that has not as yet fully reared its head.

The issue will most likely arise at some time in the future of the ability of even the largest operators to meet claims against them, within the UK some protection is afforded against the scenario by the Third Party (Rights Against Insurers) Act 1930. However, problems are still persisting as to whether all potential defendants (operators, landowners, public authorities) have sufficient, or any insurance cover. Albeit that the insurance company is liable to the defendant and not the claimant, the assets paid over by the insurance company become assets that the claimant can claim against. For a case setting out this aspect see T & N Ltd V Royal & Sun Alliance Plc [2003] EWHC 1016 (Ch) (9 May 2003), although it is a complex case it does have some useful pointers in it.

The question of effects on the local (or wider) community must be looked at separately to potential effect on employees, that is of the operators, the land owners of sites, the emergency services, and companies that provide mobile phones to their employees as part of their work equipment. Already we have deaths of serving police officers who's relatives are alleging that the use of TETRA hand sets have contributed to their deaths.

For claims by those that might be exposed to emissions as a result of their employment, for instance telecom engineers and police officers (TETRA - AIRWAVE), then they may be covered by Section 55 of The National Insurance (Industrial Injuries) Act 1946, the various Regulations and the National Insurance (Industrial Injuries) Act 1965. By Section 55 of the 1946 Act an employee insured against personal injury caused by accident arising out of and in the course of his employment was to be insured also against any prescribed disease, and specific provision was made in section 57 as to certain respiratory diseases. Similarly, section 1(1) of The Employers Liability (Compulsory Insurance) Act 1969 provides as follows:-

• "Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain".

The relevant Regulations being the Employer's Liability (Compulsory Insurance) General Regulations 1998. It is arguable that an employer provides equipment as part of that employment, for instance a mobile phone, then the employer must provide insurance under these provisions. The cost could be exorbitant for some employers, whilst others may not be able to gain cover.

The House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 said:-

• Lord Kilbrandon said at p 10B that he did not find it easy to say in the abstract where the possibility of the efficacy of the precautions shaded into the probability that they would have been efficacious. But in a case where the actual chain of events in a man's body leading up to his injury was not clearly known, but it was proved that the defendants knew that to take a precaution reduced the chance/risk/possibility/probability of contracting the disease, that the precaution was not taken and that the disease had supervened, it was difficult to see how they could demand more by way of proof of the probability that their failure caused or contributed to the physical breakdown.
  
  Lord Salmon said at p 11G that he accepted that the burden rested upon the pursuer to prove, on the balance of probabilities, a causal connection between his injury and the defenders' negligence. It was not, however, necessary to prove that their negligence was the only cause of injury. A factor, by itself, might not be sufficient to cause injury but if, with other factors, it materially contributed to causing injury it was clearly a cause of injury. He regarded the identification of the cause of an event to be essentially a practical question of fact which could best be answered by ordinary common sense..

From this it will be seen that the normal burden of proof on the Claimant is partially shifted to that of the Defendant. That is if there is a clear case that the ailment was caused by EMF, and that one of the contributing factors in all probability was that of the Defendant Mast Operator, then the claimant need not prove more.

The other aspect is that of cumulative effect, thus where more than one source was responsible for the effect then either individually or collectively each is liable for any damages awarded. Of course in proportion to the effect, except where that cannot be specifically attributed to any one source. Thus if a mast had 3 operators, all transmitting using 3G technology it would in all probability to proof which of the operators emissions caused the ill health, or to what degree each contributed, therefore all would be equally liable. But say there were two 3G, and a TETRA installation, and it could be demonstrated that the illness could only be caused by the TETRA system, then clearly only the TETRA operator would be liable, unless the cumulative effect of the additional 3G whilst not causing the initial ill health contributed to its worsening state, in which case the 3G operators would be liable to a lesser degree, which would be reflected in a lower percentage of damages being awarded.

Is there a case today for a claim of damages for ill health caused by telecommunication installations. In the right circumstances then yes, but it would in truth be a rare case, there is insufficient evidence of a general ill health effect. Yes we can point to ill health clusters, but we cannot prove to the degree that would be required by the courts that the ill health was caused by telecom emissions, we might be able to prove that it was caused by EMF, but against that we would have to prove that it was not from naturally occurring EMF or from those from another source such as High Powered Cables. Any such case at present then would need to be backed by the best academics, with the most stringently investigated medical evidence. But, not so with the case lodged today of an assertion that a person might in all probability contract the same ailment in years to come. All that would need to be prooved today is that there is a reasonable prospect of such an illness being contracted and that the source could be that of EMF emitted from telecom installations, a lesser degree of proof. The reason for this is that the final case would be decided not on today's evidence but on that of the future, when the science is better understood. In the words of Lord Bingham in Fairchild:-

• Having reached these conclusions I think the remainder of Mr. Lamb's criticism of the judge falls away. He cannot and does not suggest that it was not open to the judge to reject Dr Holliday's evidence and prefer that of Professor Blakemore. The judge explains his reasons for doing so in considerable detail. Mr. Lamb criticises some of those reasons but this Court does not and cannot go behind findings of this kind. There is no doubt that in a number of respects Dr Holliday was advancing novel propositions which suggested among other things that the NRPB misunderstood the physics of radiation and the physiology of its effect on the body. Professor Blakemore is a distinguished physiologist who is a member of the NRPB Advisory Group and was a member of the group which produced the Stewart Report in March 2000 about the possible health hazards associated with exposure to radio frequency radiation from mobile phones. Not surprisingly the judge was impressed by his expertise.

The illustration here is the acceptability of the 'establishment' experts over those of the complainants experts.

The last thing we are suggesting in this briefing is that potential suffers of ailment that could be associated with telecom emissions should trot off to court, but instead to point to the potential route that might get the best result.

• The most fundamental problem is funding. As Sir Robert Carnworth observed in 1999:
  "Litigation through the Courts is prohibitively expensive for most people, unless they are either poor enough to qualify for legal aid or rich enough to undertake an open-ended commitment to expenditure running into tens or hundreds of thousands of pounds".
  Environmental cases tend to be very expert heavy and lengthy. For example, the personal injury claims brought as test cases against British Nuclear Fuels involved 35 experts with the trial lasting almost a year. The case was brought on thebasis that paternal irradiation from Sellafield was the cause of leukaemia in offspring.
  Environmental cases tend to be costly to investigate and bring. In a County Court nuisance case, settled during trial, involving odour and fly problems from a nearby chicken farm, the Claimants' legal costs came to over £100,000. These costs dwarfed the compensation agreed.
  However, a recent, successful High Court nuisance/human rights case involving noise problems from Harrier vertical take-off jets, confirmed what could be achieved by Claimants with sufficient resources at their disposal to pursue a legal claim. An important judgement found common law nuisance and allowed MOD operations to continue but required the payment of compensation to the Claimant for past and future damage, including diminution of their property.
  The judge also agreed that there was a breach of the Human Rights Act and said that he would have awarded the same amount. This is an important development because, traditionally, Courts have not explicitly considered public interest issues when considering nuisance. It also seems to mark a more flexible approach where compensation is paid in lieu of a continuing nuisance rather than granting an injunction.

If you look at our general briefing on legal challenges and funding for more information on how to obtain legal aid, and other sources of funding.