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17 November 2015

Risks, regulations and liability around exposing people and students to wireless technology EMF radiation – Part 2: Presentation by David Andersen

People are not all affected by radiation at the same rate.
People are not all affected by radiation at the
same rate.
Risks, regulations and liability around exposing people and students to wireless technology EMF radiation – Part 2

David Andersen, partner at HWL Ebsworth Lawyers

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 [2009] 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.

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