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       Hazards special online report, June 2015
In the courts, it is relatively easy to evade work cancer justice
Your cancer may be 100 per cent caused by your job, but a fixed numbers game played by industry and the courts means in most cases your employer will dodge the blame. Hazards editor Rory O’Neill challenges a system that means when it comes to compensation, most cancers don’t count.

When on 23 October 2012 the High Court ruled that workers at the now closed Phurnacite smokeless fuel plant in Wales did develop lung cancers as a result of their work, the case was considered a big deal.



THE LUCKY ONES?
  Lung cancer victim Terry Jones was one of those supposed to benefit from the Phurnacite judgment. He did a similar job through the 1980s, on top of the coke ovens at two British Steel plants in South Yorkshire. Commenting on the day of the ruling, he said: “Hopefully now the legal action will provide us victims and our families the justice we deserve as well as the knowledge that they will have some financial security when I’m gone.” But the judgment came too late for Terry. Within months he was dead.

The decision, described by lawyers for the plaintiffs as a “victory for coke oven cancer victims,” meant other workers with cancer – those employed on coke ovens in the steel industry, for example – might also cash in. Group actions involving British Coal and British Steel cancer claimants are due to start later this year.

The Phurnacite case involved workers making fuel briquettes at the South Wales plant who developed cancer and respiratory diseases. It established the legal basis for accepting occupational cancer compensation claims.

The ruling by Mrs Justice Swift found there was convincing evidence processes at the plant caused chronic obstructive pulmonary diseases (COPD) and lung cancer. One type of skin cancer, squamous cell carcinoma, was also found to be related to the work. Four claimants were awarded between £4,500 and £120,000.

But eight former workers had brought the test case on behalf of 183 workers who submitted a joint claim, and the other four got nothing.

 

Judge for yourself

The judge ruled there was insufficient evidence for the court to find that, on a balance of probabilities, bladder cancer and other types of skin cancers were caused by work at the plant.

Phurnacite came with various National Coal Board (NCB) guises, including being a part of National Smokeless Fuel Limited (NSFL). This meant the main defendant was the UK government, owner of the pre-privatisation coal behemoth.

The firm did expose workers to potentially deadly risk. The judge, in her ruling, said “I find that the claimants have succeeded in establishing that, throughout the period between 1947 and 1990, the NCB/NSFL exposed their workers to dust and fume that were ‘likely to be injurious’.” But Mrs Justice Swift had loaded the dice against bladder cancer victims. She ruled out a consideration of whether exposures at work made a “material contribution” to the cancer risks, the system sought by the plaintiffs.

A DEADLY ILLUSION Double relative risk (RR) is not just a high threshold, but a corrupted threshold influenced by factors including assumptions about fairness and good science that are not fair or scientific at all. more

The judge instead opted for the ‘balance of probabilities’, ‘more likely than not’ system where there is double the “relative risk” of the condition in the exposed workers.

“The defendants urged me to decide the cancer cases (at least the lung and bladder cancer cases) by applying the ‘doubling of risk’ test,” the judge said.

It is probable some bladder cancers will have been caused by exposures at what was dubbed “Europe’s dirtiest factory” – workers were exposed to known  bladder carcinogens – but under the system favoured by the judge and the defendants, where the balance of probabilities equation fell a fraction to the wrong side of the line not a single case was compensated.

Hazards spoke to lawyers who acted for both sides, but none would comment on the record. They did agree on one thing. A defence lawyer said moving away from this double relative risk system “would require a change of policy probably at Supreme Court level.” And a lawyer for the claimants said “the courts will simply not tolerate any test other than the relative risk x 2 test in non-divisible cancer claims.”

This ‘non-divisible’ point is a case killer. It means that in general for occupational cancers it is not possible to establish a dose-response relationship, where increasing exposure correlates with increasing risk. So instead of judging individual cases on their merits, the aggregated relative risk evidence from studies is used.

It’s the system employed by the Industrial Injuries Advisory Council (IIAC) that has kept the official UK list of cancers qualifying for Industrial Injuries Disablement Benefit (IIDB) much shorter than the list of Health and Safety Executive (HSE) recognised causes (see table). Of the 24 cancer sites or types identified by HSE, over half (13) are not recognised for IIDB payouts and for a quarter more (6) only some of the HSE recognised causes are recognised. For occupational lung cancer, for example, HSE recognises 21 associations, IIAC just eight. For bladder cancer, HSE lists eight jobs or exposures, IIAC two.

The implications for common law cancer claims are just as devastating. HSE estimates there are 13,500 new work-related cancer cases each year, a figure even it concedes is on the low side (Hazards 120). In 2011/12, just 2,500 received civil compensation payouts for occupational cancer, almost all of them suffering from one asbestos related condition, mesothelioma. Take the asbestos-related mesothelioma settlements out of the picture, and in 2011/12 the 11,000-plus other new occupational cancer cases resulted in just a couple of hundred successful claims, with fewer than 1-in-50 sufferers receiving compensation (Hazards 122).

While ‘more likely than not’ has a ring of fairness to it, it by design denies compensation to most victims of occupational cancer caused by undisputed carcinogens because their carcinogen, at least according to the available studies, didn’t quite kill enough.

 

Junk science

It is likely to be some time before another full-blown test case like Phurnacite comes along, and until then the double risk threshold is the only game in town.

This is re-fuelling a whole defendant-driven junk science industry based on casting doubt not on whether substances cause cancer, but whether they cause enough cancers to break the ‘doubling of risk’ barrier that could lead to legal liability.
Take benzene, a potent carcinogen. In parts of the Phurnacite plant where two bladder cancer claimants worked, an expert witness for the defendants accepted “benzene would have been the main constituent of the vapour”, but said it “was likely to be, on average, no more than a few parts per million.”

If low level exposures did cause cancers, the liability calculation would change. Which is why the biggest names in petrochemicals – BP, Chevron, ConocoPhillips, ExxonMobil and Shell – launched their own study.

In December 2014 the US Center for Public Integrity (CPI), Columbia University and the City University of New York published online a 20,000 page dossier of internal oil industry documents showing the firms “set out to counter US government research tying benzene to more types of cancer and at lower exposure levels than previously known. They show how company executives and scientists plotted objectives and ‘expected’ results before the study began, banking on conclusions that would play down health hazards.”

Other studies supported surreptitiously by industry-front organisations were commissioned to challenge papers finding a doubling of risk (Hazards 129).
Mrs Justice Swift, hearing the Phurnacite case, discussed at great length arguments about the applicability of the double risk test as opposed to the plaintiffs’ preference for the lower threshold provided by the ‘material contribution’ test. But she expressed a “belief that the ‘doubling of risk’ test is an appropriate approach in the circumstances of this litigation.”

But it is a test skewed against claimants by junk science, bad sums and an approach that averages out the risks across workplaces from the terribly bad to terribly good. This cut off will not ascribe corporate liability for most indisputable occupational cancers.

In the balance of probabilities, almost all workplace victims will lose out as a result.

 

DOUBLE RELATIVE RISK - A DEADLY ILLUSION

Double relative risk (RR) is not just a high threshold, but a corrupted threshold influenced by factors including assumptions about fairness and good science that are not fair or scientific at all.

 

US occupational health researchers Richard Clapp and David Ozonoff, writing in the American Journal of Law and Medicine, noted: “In our experience as epidemiologists who participate in the legal process as experts, some attorneys maintain and some courts believe that a RR of 2.0 is needed before one can conclude from an epidemiological study that the outcome was ‘more likely than not’ due to the exposure.

 

“The arithmetic basis of this proposition would seem quite transparent, but like many things in the subtle and complex science, there are sound and accepted reasons why this argument is not valid.”

 

They note that the relative risks across a “usually heterogenous” study group could mask much higher and genuine occupational risks in someone with few or none of the other risk factors present in the group, leading to “a serious under-estimate of the effects of his or her exposure.”

 

They add: “Without a specification of the underlying causation model, which in almost all cases is insufficiently known to allow an accurate calculation, or even any calculation, of the fraction of cases due to exposure, the doubling of the RR… is useless as a criterion for evidentiary admissibility.”

 

Sander Greenland, in the title of a 1999 paper in the American Journal of Public Health, described the doubling of risk requirement as “a methodologic error that has become a social problem.”

 

The doubling of risks approach, based on cancer rates across lots of workplaces and lots of exposure circumstances, lops the tops off cancer mountains in a system where only mountain tops count.

 

But the reality, for workplace cancer victims, is worse still. The science has been hijacked by a corporate ‘product defence’ industry, with the express purpose of protecting products and evading legal liability (Hazards 123).



 

 

A PRESCRIPTION FOR INACTION

HSE occupational cancer
causes and associations

 

Occupational cancers and causes and associations recognised by IIAC for prescription and added to the IIDB list

 

Bladder

aromatic amines, diesel engine exhaust, hairdressers and barbers, mineral oils, polycyclic aromatic hydrocarbons, painters

 

Bladder

Various aromatic amines, coal tar pitch volatiles produced in aluminium smelting involving the Soderberg process

 

Bone

ionising radiation

 

Bone

Electromagnetic or ionising radiation

 

Brain

inorganic lead, non-arsenical insecticides, petroleum refining

 

Brain

Nothing prescribed

 

Breast

flight personnel, shiftwork

 

Breast

Electromagnetic or ionising radiation

 

Cervix

tetrachloroethylene

 

Cervix

Nothing prescribed

 

Kidney

trichloroethylene

 

Kidney

Nothing prescribed

 

Larynx

asbestos, rubber industry, strong inorganic acid mists containing sulphuric acid

 

Larynx

Nothing prescribed

 

Leukaemia

benzene, 1,3-butadiene, ethylene oxide, formaldhyde, ionising radiation, non-arsenical insecticides

 

Leukaemia

benzene, electromagnetic or ionising radiation

 

Liver

ionising radiation, trichloroethylene, vinyl chloride

 

Liver

vinyl chloride

 

Lung

arsenic, asbestos, beryllium, cadmium, chromium VI, cobalt, diesel engine exhaust, environmental tobacco smoke, inorganic lead, ionising radiation, mineral oils, nickel, polycyclic aromatic hydrocarbons, painters, radon, silica, steel foundry workers, strong inorganic acid mists containing sulphuric acid, 2,3,7,8-tetrachlorodibenzodioxin (TCDD), tin miners, welders

Lung

arsenic, asbestos, nickel, silica, tin miners, exposure to bis (chloromethyl) ether produced during the manufacture of chloromethyl methyl ether, exposure to zinc chromate, calcium chromate or strontium chromate in their pure forms, coke oven work

 

Lympho­haematopoietic

1,3-butadiene

 

Lympho­haematopoietic

Nothing prescribed

 

Melanoma (eye)

welding, ultra violet light

 

Melanoma (eye)

Nothing prescribed

 

Mesothelioma

asbestos

 

Mesothelioma

asbestos

 

Multiple myeloma

non-arsenical insecticides

 

Multiple myeloma

Nothing prescribed

 

Nasopharynx

wood dust, formaldehyde

 

Nasopharynx

wood dust

 

Non-Hodgkin lymphoma (NHL)

hairdressers and barbers, non-arsenical insecticides, TCDD, tetrachloroethylene, trichloroethylene

 

Non-Hodgkin lymphoma (NHL)

Nothing prescribed

 

Non melanoma skin cancer (NMSC)

solar radiation, mineral oils, polycyclic aromatic hydrocarbons (coal tars and pitches)

 

Non melanoma skin cancer (NMSC)

arsenic or arsenic compounds, mineral oils, coal tar, pitch, bitumen, soot

 

Oesophagus

soots, tetrachloroethylene

 

Oesophagus

Nothing prescribed

 

Ovary

hairdressers and barbers

 

Ovary

Nothing prescribed

 

Pancreas

acrylamide

 

Pancreas

Nothing prescribed

 

Sinonasal

chromium VI, formaldehyde, leather dust mineral oils, nickel, wood dust

 

Sinonasal

the manufacture of inorganic chromates or work in hexavalent chrome plating, footwear made wholly or partly of leather or fibreboard, nickel

 

Soft tissue sarcoma (STS)

TCDD

 

Soft tissue sarcoma (STS)

Nothing prescribed

 

Stomach

asbestos, inorganic lead, painters, rubber workers

 

Stomach

Nothing prescribed

 

Testis

not on HSE’s list

 

Testis

electromagnetic or ionising radiation

 

Thyroid

ionising radiation

 

Thyroid

electromagnetic or ionising radiation

 

Sources

The burden of occupational cancer in Great Britain: Overview report, RR931, HSE, 2012.

List of diseases covered by Industrial Injuries Disablement Benefit, DWP.
      


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Relative risk
Part 2: Cancer cause

Your cancer may be 100 per cent caused by your job, but a fixed numbers game played by industry and the courts means in most cases your employer will dodge the blame. Hazards editor Rory O’Neill challenges a system that means when it comes to compensation, most cancers don’t count.

Also see: Part 1
Mean test -The flaws in the industrial injuries benefit system

Contents
•    Introduction
•    Judge for yourself
•    Junk science
•    A prescription for inaction
•    A deadly illusion

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