Risks, regulations and liability around exposing other people to wireless technology EMF radiation – A review of the UNSW Sydney ‘faculty of law’ program – part 2
The world is changing at a rapid pace. Not surprisingly then, there has been a rampant proliferation of home and business cordless transmission technology (e.g. mobile phone towers, smart meters, wi-fi cordless phones) that has vastly increased our exposure to radiation. Recent legal developments are causing the producers of this radiation overload to sit up and take notice, as the issue of costly liability and lawsuits is fast becoming a reality.
UNSW Sydney faculty of law continuing education program – 14 October 2015
The law: When is an employer or school liable for the health effects imposed on others from their wireless technology?
After the undeniable facts presented by the medical experts (part 1), Jenne Tzavaras, partner at HWL Ebsworth Lawyers, took the audience through liability considerations. Stressing that a clear distinction must be drawn between Common Law negligence claims and statutory Workers Compensation claims. The important distinguishing feature here is the required causal nexus.
- When it comes to Workers Compensation claims, they do not require proof of fault (negligence) on the part of the employer. The causal nexus is the only thing requiring proof!
- In Common Law claims, the worker must prove negligence on the part of the employer to be successful.
To be able to seek liability under workers compensation, it must be determined if the worker compensation can apply to the situation.
- The claimant must be a worker.
- The worker must have suffered an injury arising out of or in the course of employment.
- Finally, the worker’s employment must be the main contributing factor to the injury.
A number of past court cases were brought up to show that in this context injury can be interpreted as physical injury, disease or mental illness. In the case of Commissioner for Railway v Bain
Scientific proof not required
When science tells us there is no connection between the events, like the death of an employee and their work, then the judge can’t manufacture a connection. However, if there is controversy between the science and the medical opinion, then the courts can look at all the evidence and decide whether it was probable. And so this will be different in every case where this situation exists because the evidence presented will be different in each case.
Jenne Tzavaras also provided some insights in the Australian case McDonald and Comcare  AATA 105 (28 February 2013).
Mr McDonalds was working at the Commonwealth Scientific and Industrial Research Organisation (CSIRO) since 1994. He claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) as he claimed to have been injured in the course of his employment. Conditions he had had been contributed to, in a significant degree, by his employment.
The claims were made for:
- Aggravation of an electromagnetic hypersensitivity syndrome
- Chronic Adjustment disorder with depressed moods
- Permanent impairment which came from the adjustment disorder, and
Comcare refused each of his claims.
Jenne Tzavaras covered many details of the case but the main and most important factors in it seemed to be that:
Mr McDonald advised the selection panel that decided to hire him, that he suffered from sensitivity to electromagnetic frequencies, also reffered to as EMF.
- Mr McDonald had be diagnosed for this EMF sensitivity condition in 1993.
- Mr McDonald had taken steps himself reduce exposure to EMF, including moving to the country and reducing his exposure to electronic devices.
- Mr McDonald was granted assistance by the CSIRO during his worktime which assisted him in not having to be exposed to EMF that much, as working on computers etc. was something he was sensitive to.
- After a move from the Hobart office to the Melbourne office, his administrative support was withdrawn in 2006, forcing him to make more use of computers.
- The 2 weeks after this he experienced nausea, fatigue and poor concentration.
- He consulted his doctor who wrote the CSIRO recommending that the administrative support be made available again to reduce Mr McDonalds exposure to EMF.
- In 2006, CSIRO required Mr McDonald to be subjected to a number of trials in using electronic devices at work. His symptoms again became worse after each trial.
- In 2007 his administrative support was once again withdrawn by CSIRO and he even got his wife assist him, who did his computer work for 3 months.
- During this time more trials were requested by CSIRO and his symptoms were worse again. He suffered:
- increased dizziness
- nausea that lasted longer
- tinnitus, and
- pain in the left side of the skull before the onset of migraines.
- He was then permitted to work from home for 6 months, but this was not successful and he tried to return to work but he became too ill to continue, upon which he took sick leave. He was last at work in 2009.
- In May 2011 the CSIRO informed Mr McDonald that he was medically unfit to perform the requirements of his employment.
A number of medical experts were involved in the court case:
Dr Cooper who stated that EMF sensitivity had been well documented in medical literature for a number of hears. That the WHO has recognised the Electromagnetic Hypersensitivity condition as involving “nervous system symptoms like headache, fatigue, stress, sleep disturbances, skin symptoms, prickling burning sensations and rashes, pain and ache in muscles and many other health problems.”. Dr Cooper also stated under cross examination, that there are no acceptable standards for diagnosis of a sensitivity to EMF and that research in the subject is still in its early stages.
Dr Stevenson stated that Mr McDonald was suffering from classic migraines and that he had been suffering from them since he was 13 years old. He was of the opinion that the headaches experienced were not caused by exposure to computers, and that there was no robust evidence to support Mr McDonald’s reaction to computers.
Dr Hoching, who has 30 years experience and expertise in the health effects of EMF, has assessed Mr McDonald’s workplace. He stated that sensitivity to EMF can happen when exposed to any part of the electromagnetic spectrum.
Dr Andersen (Engineer and Biophysicist) was of the opinion that Mr McDonald does not exhibit an actual sensitivity to EMF but instead he contributed the symptoms claimed to be caused by EMF to a nocebo response with he deemed more plausible. This means that the symptoms were a conditioned response to the expectation of being exposed to EMF. He explained how the radiation levels of the sources Mr McDonald had problems with, were within the extremely low frequency and radio frequency (RF) bands of the electromagnetic spectrum. He also commented that the EMF radiation experienced in commercial and light aircraft could be expected to be much higher in comparison to a normal office environment.
Decision in McDonald and Comcare
The court decided in the favor of Mr McDonald and made comments along these lines:
- Mr McDonald has suffered from an ailment even though it is not recognised with a diagnostic label,
- the trials he was exposed to at work in 2006 and 2007 made his symptoms worse than they had been before the trials.
- That CSIRO had aggrivated the condition with the trials and the aggravation is ongoing.
- They were satified that the exposure to EMF was a result of his employment, and that
- the aggravation of the ailment was, to a significant degree, contributed to by him working at CSIRO, and that
- there was no evidence that pointed to any other factor than his exposure at work.
- They accepted that Mr McDonald had suffered an injury, being chronic adjustment disorder with depressed mood, as a result of his working with CSIRO, and that this was a permanent impairment one, and that
- Mr McDonald suffered an injury in respect to migraines.
Reflecting on the McDonald’s case
In the author’s perspective, the case with Mr McDonald was full of transparency with the employer. He raised the issue before they hired him. CSIRO made provisions to cater for his inability to work with computers etc. CSIRO took it upon itself to conduct tests and it was these tests that, so it feels when listening to the lawyer summarise, is what lost the case for CSIRO.
Of course, a lot has happened since this court case. Other legal battles have been won and more evidence that RF-EMR (including Wi-Fi) is harmful keeps surfacing.
Common Law Liability and EMF radiation exposure
David Andersen, partner at HWL Ebsworth Lawyers, who has experience with astbestos cases then spoke about Causation at Common Law. He commented that there are parallels between the asbestos litigation which has brought on difficult questions about scientific proof, causation, foreseeability, reasonable response to risk, and that these questions could arise in the context of radiation related legal battles also.
David Andersen started with given those present an insight into Causation at Common Law. He explained that a defendant is liable for the whole of a plaintiff’s damages if the defendant’s negligence made a ‘material contribution’ to the injury. This is not a high obstacle because the courts have a principle that if a contribution is not within, what is called ‘de minimis non curat lex‘ (basically court’s time-wasting trivial matters) then any contribution that doesn’t fall under that label, MUST BE material.
if only one of those employers still exists 40 years after the fact, then that one employer will pay for 100% of the liability
This leads to the concept of indivisibility (meaning it is not able to be divided from the whole). In the example of astbestos; If a person was to inhale astbestos whilst working at different building sites for different employers over different periods of time, and 40 years later developes mesothelioma, then that is regarded as a single indivisible injury. Each individual period of employment is not seen as have cause separate injury. The exposures have produced a single indivisible result. And so, if only one of those employers still exists 40 years after the fact, then that one employer will pay for 100% of the liability.
When we consider that someone might experience EMF radiation exposure from a range of sources, including but not limited to:
- their mobile phone,
- from mobile phone towers telecommunications signals whilst in their home or in the street,
- a smart meter put onto their home by the electricity company,
- Wi-Fi the public library or shopping centres,
- Wi-Fi from their neighbors wireless devices
- Wi-Fi from the in-home-control, computer and entertainment devices,
- airplane travel,
- airport navigation equipment from an airport near their home,
- Wireless NBN towers (wireless internet put into the ether by government or telecom companies), and then
- the exposure at work or in school…
This is where it gets interesting in relation to EMF radiation exposure and this is for experts and lawyers to argue: Do these individual exposures to radiation add up to one single indivisible result? Or have each of those sources only caused a separate identifiable attack on the bodies defense mechanism?
Breach of the duty of care
The courts have the task to determine how one (a company or school) is meant to respond to a perceived risk. This ‘responding’ can also been viewed against the context of exposure duration. A child, which is still growing and cells are multiplying, being exposed to the radiation of a commercial grade Wi-Fi system all day long, may warrant a different response of the defendant compared with the response to the perceived risk of that of a cleaner who only works in that environment a couple of hours, one day a week. The duty of care and foreseeabilty consideration are likely to be very different.
David Andersen stressed that a risk that is not far fetched and foreseeable, is a real risk. It is hereby important that the risks are established. The condition, of being harmed by EMF radiation, is still being questioned. ‘Is there any danger in being exposed to this non-thermal, low level radiation?’ That is why it is important there is indisputable research showing that this exposure to EMF radiation can be harmful.
It is not a simple case of looking back and stating ‘You COULD have done this, and you COULD haven taken this preventative step’. Instead it should be a ‘prospective inquiry’ in which you put yourself in the shoes of the defendant, being a school principle or employer, who comes to work a the beginning of a week and looks forward to the dangers their staff and/or students might be exposed to or experience… There might be chemicals in the science class room, areas of the playground that are not easily supervised for violence, children with special needs.
There are great deal of potential risks in any school or work environment and it would be unreasonable to expect a principle or employer to spend his time reading every piece of published literature on an enormous scope of subjects to investigate if there is a potential risk. There is on this subject alone already so much EMF radiation research. What the employer needs, are acceptable standards to work by so that they can make sure those are met and preventative measures to avoid injury or harm are put in place.
It is also important to know what these preventative steps should be and the medical experts can be helpful in establishing this. In terms of breach of duty, it would then also need to be considered if the preventative measures would have avoided the injury. As we know with radiation, we are exposed to so many sources everywhere, we would have to prove that the injury would not have happened if the preventative measures were taken and this may prove difficult as our exposure is so wide spread.
Risks of Occupiers
When there is a relationship of ‘master – servant’ (employer – employee, school – pupil, hospital – patient) then it is relatively straight forward in terms of there being a duty of care. It is ‘easier’ for the law when there is a more defined relationship between the defendant and the plaintiff, but what about people walking past a building site and being affected by something from there? Being in public places, airports, shopping centre and libraries?
The case of Caltex Refineries (Qld) Pty Ltd vs Stavar  NSWCA 258 dealt with such a situation, where the wife of the employee, who washed his astbestos covered work overalls, attracted lung cancer and it was determined that there was a duty of care. On that same line of thinking, a duty of care could very well be applicable for:
- the EMF radiation exposure people receive in public areas, like Wi-Fi
- areas caught in the cross fire of mobile phone towers
- areas they were allowed to build or occupy a home, as is the case near power supply cables big or small.
There are laws in place and requirements on those owning and managing facilities that they are to be kept safe for others to be in or near. The problem with EMF radiation is of course that the science, regardless of all the evidence available, is still divided on whether radiation exposure is safe.
Summary of UNSW Sydney faculty of law continuing education program – Risks, regulations and liability of exposing other people to wireless technology EMF radiation
The medical evidence is overwhelming that non-ionising (EMF) radiation exposure brings with it a risk of health damage and inevitably that means that people are currently getting effected by the radiation exposure that others push upon them. For many this will mean that small health issues are simply ‘put up with’ and perhaps discounted under the statement ‘part of getting older’ because people don’t realise the onset of these health issues can be caused by environmental radiation exposure. GEOVITAL academy has been dealing with the aftermath of this exposure in their patients for several decades and where many scientist are focusing on what may be harmful, our focus and experience is based on what levels of exposure and protection is needed to maximise chances of health recovery. This often even involves, but is not limited to, removing the radiation exposure that is produced by the electrical wiring inside bedroom walls which we find to be a problem in about 95% of homes!
When it comes to seeking justice for health effects suffered from exposure to EMF radiation it is certainly not an easy task. In the present state of affairs, it does seem that an ‘out of the blue’ claim against a school or employer seems to have little chance of success. The key seems to be that we need to inform those that expose us of our concern, our sensitivity if you have it, the health issues being experienced and ongoing requests, for those responsible, to rectify the situation. It seems that only when we make it clear to them that they have a duty of care and by them then refusing to do something about it, they may be in breach of that duty of care. We must therefor make them aware that EMF radiation exposure causes health risks and health problems, and make them aware that you, or your child, is being affected.
Our thanks for UNSW Sydney for putting on this event.