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Mobile phone claims face high level of proof challenge

Heavy mobile phone use has increased health concerns in the UK. But if litigation has failed in the US on the basis of insufficient evidence will claimants fare any better in the UK? Martyn Day, senior partner in Leigh Day and Co, talks to Stephen Ward… 

Despite growing health fears and growing numbers of people claiming they are victims of illness caused by mobile phone use, the evidence still stops short of underpinning a case in the English courts, according to Martyn Day, senior partner in Leigh Day and Co, specialists in group personal injury claims.

Day, who brought ultimately unsuccessful claims against Sellafield nuclear power station and against an electricity company for health risks caused by overhead wires, says: “From the work we’ve done over the past 10 or 15 years over electromagnetic fields and radiation, the difficulty is that the courts require a high level of proof, and they are cautious particularly in a field where the evidence is changing.”

In 2000 an inquiry into the effects of mobile phones chaired by Sir William Stewart concluded: “In line with our precautionary approach, at this time, we believe that the widespread use of mobile phones by children for non-essential calls should be discouraged.” This month Sir William now chairman of the National Radiological Protection Board, and the Health Protection Agency, strengthened his warning, saying that children under eight should not be allowed to use them. “I don’t think we can put our hands on our hearts and say mobile phones are safe,” he said.

Day says: "What we see from the Stewart report is that maybe there is enough evidence now that people should be concerned but there is a big difference between that kind of precautionary approach and actually proving on the balance of probability that a particular cancer was caused by mobile phones." Even cases in the United States have failed for insufficient evidence.

The heavy mobile phone use by the majority of the population still goes back only four or five years, he says, so it is early for statistical studies to demonstrate the effects of long-term use. Stewart pointed out that early studies showing a risk have not yet been replicated, and Day says that makes him nervous about launching an action. He says biologists began from the position that the radiation from a phone was too weak to cause any damage, and there has not yet been scientific evidence to make the bulk of them change their minds. There would be enough potential claimants with tumours to begin a case if the evidence strengthens, he believes. “We’ve had numbers of inquiries and if we were to go ahead I’d be amazed if large numbers didn’t come forward,” he says. But Day says the legal test is that the risk must be shown to be at least doubled by the hazard, so that of 100 people with brain tumours you have to show 51 sustained them from mobile phones, and only 49 naturally, so it is more likely than not that any individual’s tumour was caused by a mobile phone.

He says millions of pounds would be needed to mount the case, and the mobile phone industry would spare no expense in contesting the claim. He says the electricity companies mounted an immediate £7.5m fighting fund in the pylon case at the start, and mobile phones potentially affect far more people than the relatively few who live beneath pylons.

(24/01/05)

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