DAVIS & DOCHERTY v BALFOUR KILPATRICK LTD & ORS [2002] EWCA Civ 736

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(H.H. Judge Overend)
[2002] EWCA Civ 736Case No Case No: A2/2001/1762Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
DAVIS & DOCHERTYAppellantsBALFOUR KILPATRICK LTD & ORSRespondents
Before
Lord Justice KennedyLord Justice TuckeyMr Justice JacksonMr. Timothy Lamb QC & Mr. Alexander Dawson (instructed by Foot Anstey Sargent) for the AppellantsMr. Benjamin Browne QC & Mr. Stephen Archer (instructed by Hugh James Ford Simey) for the RespondentsDate 23 May 2002

Lord Justice Tuckey:

Introduction

[1]This is an appeal from a judgment of His Honour Judge Overend on a preliminary issue in which after hearing 5 days of evidence he held that the two claimants were not exposed to the foreseeable risk of radiation sickness whilst working on a radio transmitting mast in June and July 1996. The claimants’ appeal with Mantell LJ’s permission contending that the judge’s approach was flawed because he did not make any finding as to the cause of their symptoms (the diagnosis issue) and should not have rejected the evidence of their expert consulting engineer and physicist, Dr Holliday. They ask for a new trial so as to have the issue retried and to enable them to advance new ECHR arguments. They need to amend their notice of appeal to raise these arguments. Some Science Some Science[2]A radio transmitter emits electro magnetic waves which create an electro magnetic field around the transmitter. The electro magnetic field radiates energy to objects within it. Its capacity to do so depends upon among other things the frequency of the waves and the power of their source. This case is concerned with waves emitted at very high frequency (around 100 MHz) for FM radio. The strength of the electric field (field intensity) is measured in volts per metre (Vm) by meter. The field is disturbed at or very near to its source which makes it difficult to measure accurately.[3]The heating effect of exposure to electromagnetic radiation is considered to be the most significant threat to health. After extensive research the National Radiological Protection Board (NRPB) concluded that no risk to health is posed by local or general heating of the body until the rise in tissue temperature exceeds 1ºC. To this end they set a basic restriction exposure measured by a specific energy absorption rate (SAR) in watts per Kg (Wkg). For the 100 Mhz frequency the basic restriction is 0.4 Wkg averaged over the whole body, 10 Wkg in the head, neck and trunk and 20 Wkg in the limbs.[4]SAR cannot be measured in the way that Vm can be. So the NRPB set what are described as investigation levels which are to be used “For the purposes of comparison with values of measured field quantities for investigating whether compliance with basic restrictions is achieved. If the measured values are greater than the relevant investigation levels it does not follow that the basic restrictions are exceeded.” For the 100 Mhz frequency the investigation level for field intensity is 100 Vm. The whole body SAR is the equivalent of this; the higher SARs translate approximately into 500 Vm and 700 Vm respectively. The Facts “For the purposes of comparison with values of measured field quantities for investigating whether compliance with basic restrictions is achieved. If the measured values are greater than the relevant investigation levels it does not follow that the basic restrictions are exceeded.” For the 100 Mhz frequency the investigation level for field intensity is 100 Vm. The whole body SAR is the equivalent of this; the higher SARs translate approximately into 500 Vm and 700 Vm respectively. The Facts[5]The mast was at Redruth in Cornwall. It was owned by the BBC (the 3 rd defendant) and operated by NTL (the 2nd defendant). The claimants were employed as riggers by Balfour (the 1st defendant) who contracted with NTL to install new Channel 5 antennae on the mast above the FM antenna. There were other antennae on the mast but the FM antenna was considered to be a potential hazard for those doing this work. Access to the work area was via the ladder within the mast, an open steel lattice-work tower 150 metres high, or a travelling chair. The chair was secured to two steel cables: one acted as a pilot for the chair; the chair was pulled up and let down on the other (the winch bond). The winch bond ran over a pulley at the top of the mast and down within it and was recognised as a secondary source of radiation.[6]Before the work started NTL’s senior project engineer, Mr. Peters, produced a safety plan which said that the risks from radio frequency (RF) in the work area and to personnel travelling to it in the chair would be assessed and measured “and the necessary actions taken (i.e. power reduced) if RF levels exceed the recommended investigation levels”. After the two cables had been rigged Mr. Peters, whose evidence the judge accepted, went up the mast in the chair to survey for RF hazards. He recorded the results of this survey as follows:
“All measurements were below NRPB investigation levels, apart from those measured when nearest to the top tier of the [FM] antenna, where the levels just exceeded 100 Vm investigation level. In order to reduce this level the transmitter power to the top half of the antenna was reduced by approximately 3 dB bringing all levels below NRPB investigation levels. Measurements were also taken in the vicinity of the bond. Levels varied between 20–150 Vm depending on position and meter type, but all levels decayed to <20 Vm at a distance of 4”
. The bond run was relocated so that it was not running near to the ladder.” “All measurements were below NRPB investigation levels, apart from those measured when nearest to the top tier of the [FM] antenna, where the levels just exceeded 100 Vm investigation level. In order to reduce this level the transmitter power to the top half of the antenna was reduced by approximately 3 dB bringing all levels below NRPB investigation levels. Measurements were also taken in the vicinity of the bond. Levels varied between 20–150 Vm depending on position and meter type, but all levels decayed to <20 Vm at a distance of 4”. The bond run was relocated so that it was not running near to the ladder.”[7]In his oral evidence Mr. Peters said that his measurements had been taken “against” the winch bond all along its relevant length and that the higher measurements had been taken before the power was reduced.[8]Balfour’s records show that the appellants started work on the mast on the 24 th June 1996. The first appellant then worked the following day and on the 3 rd and 4 th July when he said he began to feel ill. On the 8 th July he saw his GP who said he thought he had flu or shingles but he returned to work and worked up the mast until the 11 th July when the job finished. The second appellant worked 6 days up the mast before the 9 th July when he said he first felt ill. He thought he had flu coming on. On the 11 th July there was a scare because high readings were obtained from the chair. Both appellants were aware of these readings which led the first appellant to believe that he had been exposed to radiation which was 25 times the investigation level. In fact, as the judge found, the high readings had been obtained from a faulty meter. Wholly unexceptional readings from another meter led him to find that the investigation level had not been exceeded at that time. He rejected the suggestion that the power had not always been reduced when work was done on the mast. It had been reduced by 2.6 dB each time.[9]As a result of what had happened on the 11 th July both appellants suspected that they might have radiation sickness. As their symptoms persisted they were each seen in August 1996 by Dr Schilling, NTL’s occupational health adviser. He advised both men that he thought they were suffering from radiation sickness for which there was no cure and from which they would only gradually recover. The Trial The Trial[10]Despite the formulation of the preliminary issue to which I have referred in the introduction to this judgment the parties agreed that it could be refined to two sub-questions which were:
“(a) were the potential effects of working on the Redruth mast between 19 th June and 11 th July 1996 such as to give rise to the symptoms of which the claimants complain; (b) if yes, were such effects reasonably foreseeable by one or more of the defendants?”
This led

the judge to identify the two central factual issues which he had to resolve as:

“Whether the claimants were in fact exposed to levels of RF greater than the investigation levels laid down by the NRPB; alternatively if they were not so exposed, was it foreseeable that exposure at a level below the investigation levels would cause injury to the claimants?” “(a) were the potential effects of working on the Redruth mast between 19 th June and 11 th July 1996 such as to give rise to the symptoms of which the claimants complain; (b) if yes, were such effects reasonably foreseeable by one or more of the defendants?”
This led

the judge to identify the two central factual issues which he had to resolve as:

“Whether the claimants were in fact exposed to levels of RF greater than the investigation levels laid down by the NRPB; alternatively if they were not so exposed, was it foreseeable that exposure at a level below the investigation levels would cause injury to the claimants?”
[11]In the paragraphs which follow I aim to give a birds eye view, but no more, of the battle lines at trial.[12]In support of their claim that they had been exposed to levels of RF greater than the investigation levels the appellants relied on the evidence of Dr Holliday, to whom I have referred, and laboratory experiments which he carried out. Using a simulated winch bond and accurate measuring equipment he produced a table of results which showed that under these conditions at a distance of 1mm from the winch bond the field intensity (Vm) was 5.43 times higher than at a distance of 4” (10 cm). So, he said, as the convention was to take measurements at 10 cms they did not give a complete picture of the RF levels around the winch bond. The fact that the measuring equipment within the meter was covered to a depth of 1cm also needed to be taken into account. The results of these experiments and the fact that the appellants worked very close to the winch bond and even touched it made it probable that they had been exposed to hazardous RF levels.[13]Dr Holliday also supported the alternative case that even if the appellants’ exposure had been below the investigation level they had nevertheless been injured by the non-thermal effects of radiation which gave rise to a potential and foreseeable risk of radiation sickness. This was the view of the appellants’ expert, Dr Hocking, an Australian specialist in occupational medicine who said that whilst there was general agreement that at high levels of frequency heating effects may occur, at lower levels the effects were subject to debate. It was his view also that the appellants were suffering from radiation sickness although he was unable to suggest any mechanism by which this could be caused by non-thermal effects or explain why thousands of hours had been worked by riggers in similar conditions without ill effect. Dr Hocking’s diagnosis was supported by the appellants’ consultant neurologist, Dr Metcalfe, although his view was not based on professional experience but on a reading of the general literature.[14]The respondents’ expert, Professor Blakemore, a physiologist, refuted much of what Drs Holliday and Hocking said. His evidence was that the only proven risk to health from RF exposure arises from heating of the body. On his analysis there was no evidence that the claimants were exposed to RF levels above the NRPB investigation levels. RF heating took effect within minutes of exposure and yet neither appellant had experienced such heating or felt ill until days after exposure. Exposure levels would have been the same on each day the appellants worked and the body did not retain radiation so there was no question of any cumulative effect. Although this was an evolving field of considerable complexity, the possibility that non-thermal effects were implicated was very very low. Professor Blakemore, supported by a neurologist, Dr Llewelyn and to some extent by a joint report from a psychiatrist and a psychologist suggested that there were other explanations for the appellants’ symptoms. The Judgment The Judgment[15]The judge gave a long and careful judgment. On the first of the factual issues which he had identified he concluded:
“ Finding of fact 108. Having considered all the evidence with care, I conclude that there is no reliable evidence that the claimants were exposed to above-NRPB investigation levels of radio frequency radiation at Redruth. In coming to this conclusion, I reject the claimants’ circular argument that the occurrence of symptoms that might have been caused by above-investigation level exposure renders such exposure more likely ( post hoc propter hoc ).”
In reaching this conclusion the judge had considered the conflict of evidence about what had happened, other contemporaneous events relied on by the parties, Dr Holliday’s evidence about his experiments and their implication and the evidence about the timing and onset of the appellants’ symptoms. “ Finding of fact 108. Having considered all the evidence with care, I conclude that there is no reliable evidence that the claimants were exposed to above-NRPB investigation levels of radio frequency radiation at Redruth. In coming to this conclusion, I reject the claimants’ circular argument that the occurrence of symptoms that might have been caused by above-investigation level exposure renders such exposure more likely ( post hoc propter hoc ).” In reaching this conclusion the judge had considered the conflict of evidence about what had happened, other contemporaneous events relied on by the parties, Dr Holliday’s evidence about his experiments and their implication and the evidence about the timing and onset of the appellants’ symptoms.[16]The judge then went on to review the expert evidence in detail. The last section of his judgment headed “Analysis and Conclusion” starts by recording:
“An issue has emerged during the trial relating to the effect of possible exposure of part of a claimant’s body to the small areas of high RF field in the immediate vicinity of the winch bond. Dr Holliday is not a physiologist, yet asserts that coupling may occur, affecting the body as a whole, with the result that he questions whether a distinction should be drawn between whole body and part body SAR.”
This is a reference to the NRPB basic restriction. Dr Holliday challenged the distinction which it makes. The judge then refers to Professor Blakemore’s evidence to the effect that the NRPB’s approach was perfectly valid and expresses his preference for Professor Blakemore’s views adding:
“Resolution of the disagreement is made easier for the court by the findings of fact that have been expressed, namely that there is no reliable evidence that either claimant was exposed to radiation levels greater than the NRPB investigation levels. ... I accept, as Professor Blakemore contends, that there were no immediate signs in either claimant of the rapid signs of over-heating described in the research papers set out in Professor Blakemore’s report ... nor does the evidence fit in with the symptoms subsequently to be expected within an hour or two.” “An issue has emerged during the trial relating to the effect of possible exposure of part of a claimant’s body to the small areas of high RF field in the immediate vicinity of the winch bond. Dr Holliday is not a physiologist, yet asserts that coupling may occur, affecting the body as a whole, with the result that he questions whether a distinction should be drawn between whole body and part body SAR.”
This is a reference to the NRPB basic restriction. Dr Holliday challenged the distinction which it makes. The judge then refers to Professor Blakemore’s evidence to the effect that the NRPB’s approach was perfectly valid and expresses his preference for Professor Blakemore’s views adding:
“Resolution of the disagreement is made easier for the court by the findings of fact that have been expressed, namely that there is no reliable evidence that either claimant was exposed to radiation levels greater than the NRPB investigation levels. ... I accept, as Professor Blakemore contends, that there were no immediate signs in either claimant of the rapid signs of over-heating described in the research papers set out in Professor Blakemore’s report ... nor does the evidence fit in with the symptoms subsequently to be expected within an hour or two.”

The judge then turned to the other issue of fact which he had identified and said:

“Dr Hocking accepts that he is in a minority in expressing his views on non-thermal effects of RF radiation exposure. On the other hand, there is a substantial body of learning to support the views of Professor Blakemore. Applying the test of the balance of probabilities, and not the test of rigorous scientific proof ... I am not persuaded that the symptoms experienced by Mr. Davis and Mr. Docherty were the result of either thermal or athermal effects of RF radiation. It follows that the preliminary issue must be answered ‘No’ in favour of the defendants, whether the question is phrased as originally drafted or as [refined].” “Dr Hocking accepts that he is in a minority in expressing his views on non-thermal effects of RF radiation exposure. On the other hand, there is a substantial body of learning to support the views of Professor Blakemore. Applying the test of the balance of probabilities, and not the test of rigorous scientific proof ... I am not persuaded that the symptoms experienced by Mr. Davis and Mr. Docherty were the result of either thermal or athermal effects of RF radiation. It follows that the preliminary issue must be answered ‘No’ in favour of the defendants, whether the question is phrased as originally drafted or as [refined].”
[18]The judge continued by saying that this conclusion could be reached by a different route. After referring to the judgment of Lord Hope in Dingley v Chief Constable of Strathclyde (House of Lords 9 th March 2000) he said:
“Here, there is no mechanism put forward to explain how symptoms of the nature complained of by these defendants [claimants], serious and long-lasting as they have been in both cases, and continue to be in the case of Mr. Davis, could be attributable to non-thermal effects of exposure of RF radiation. The studies referred to in the evidence of Professor Blakemore and of Dr Hocking do no more than raise the remote possibility that there may be such effects. The case for the claimant must accordingly fail on the balance of probabilities.”
The Diagnosis Issue “Here, there is no mechanism put forward to explain how symptoms of the nature complained of by these defendants [claimants], serious and long-lasting as they have been in both cases, and continue to be in the case of Mr. Davis, could be attributable to non-thermal effects of exposure of RF radiation. The studies referred to in the evidence of Professor Blakemore and of Dr Hocking do no more than raise the remote possibility that there may be such effects. The case for the claimant must accordingly fail on the balance of probabilities.” The Diagnosis Issue[19]This was the point that persuaded Mantell LJ to give permission to appeal. Put shortly, Mr. Lamb QC for the appellants argues that the judge was obliged to make a positive finding about the cause of the appellants’ symptoms. As he did not do so, he was unable to resolve the issues between the parties fully and fairly. He appears to have taken the line that this was a “boot straps” argument ( post hoc propter hoc ) which did not help him to resolve either of the factual issues which he identified. This was wrong: if he had found that the appellants were suffering from radiation sickness such a finding would have had an obvious bearing on both issues and vice versa.[20]I do not accept these submissions. I have set out the judge’s final conclusions in paragraphs 17 and 18. He was not persuaded that the symptoms experienced by the appellants were caused by either the thermal or athermal effects of RF radiation. He did not need to go further and should not have done so unless he felt able to do so. In a case of this kind it might be invidious for the judge to make a diagnosis when doctors could not agree about what it should be, unless he had to do so and I do not think he did. What the judge is saying is that it was for the appellants to establish their case and they had failed to do so. Judges may sometimes find themselves in this situation as The Popi M [1985] 1 WLR 948 shows. In that case the issue was whether the insured vessel had sunk as a result of perils of the sea. The trial judge felt compelled to find that it had because it had collided with an unidentified submerged submarine although this was inherently improbable. The House of Lords allowed the appeal because the only inference which could properly be drawn from the primary facts was that the reason for the ship’s loss was in doubt. Lord Brandon’s reasons with which the others agreed were:
“The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He had open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum [when you have eliminated the impossible, whatever remains, however improbable must be the truth] can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. ... The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge at first instance, before he finds that the particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not.” “The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He had open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum [when you have eliminated the impossible, whatever remains, however improbable must be the truth] can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. ... The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge at first instance, before he finds that the particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not.”
[21]Of course a judge will decide an issue of the kind which faced the judge here if he can. If the judge had felt able to go further and make a positive finding then no doubt this would have informed his conclusions on both issues of fact which he had to resolve. But in reaching those conclusions he must have realised this and before reaching them kept in mind where the evidence as to the cause of the appellants’ symptoms stood. Dr Holliday’s Evidence Dr Holliday’s Evidence[22]Mr. Lamb mounts his attack on the judge’s rejection of Dr Holliday’s evidence on a number of grounds. The first and most important of these relates to the way in which the appellants advanced their argument at trial based on Dr Holliday’s experiments and the table to which I have referred.[23]The judge records Mr. Lamb’s written closing submission as follows:
“Mr. Peter’s measurement of 150 Vm ‘at the bond’ was in fact at 1 cm from the bond, (‘the probe is set back 1 cm in its housing’). Using Dr Holliday’s experimental results, the calculated ‘at the bond’ measurement would have been 891 Vm. Accepting for the purposes of calculation that there was a power reduction of 2.6 dB, that is equivalent to an attenuation of 1.36 in voltage, so that the down-powered RF measurement ‘at the bond’ was 891/1.36 = 655 Vm.” “Mr. Peter’s measurement of 150 Vm ‘at the bond’ was in fact at 1 cm from the bond, (‘the probe is set back 1 cm in its housing’). Using Dr Holliday’s experimental results, the calculated ‘at the bond’ measurement would have been 891 Vm. Accepting for the purposes of calculation that there was a power reduction of 2.6 dB, that is equivalent to an attenuation of 1.36 in voltage, so that the down-powered RF measurement ‘at the bond’ was 891/1.36 = 655 Vm.”

The judge then said:

“There are a number of problems with this submission, it seems to me. a. Dr Holliday’s evidence does not attempt to calculate ‘on the bond’ readings. His report refers to ‘close to the bond’, which he equates to the experimental readings obtained at a distance of 1 mm: ‘Furthermore, close to the bond the electric field intensity would need to be increased by a factor of at least 5.5 times.’ b. According to Dr Holliday’s table ... a measurement of 150 Vm at 10 mm (1 cm) equates to a ‘close to the bond’ reading of 403 Vm at a distance of 1 mm (150 x 5.43/2.02), rather than 891. c. The initial evidence of Dr. Holliday was that powering down by 2.6 dB equated to a reduction of 62% in terms of RF field intensity. However, he did not disagree – despite an overnight adjournment – that a 2.6 dB attenuation meant that a reduction from 150 to approximately 70 Vm was likely, even though that calculates to 46%. The attenuation factor of 1/1.36 (for which there was no evidence) suggested by Mr. Lamb in fact equates to 73%. d. An attenuated figure of 70 Vm at 1 cm would equate to 188 Vm at 1 mm (70 x 5.43/2.02) and not 655 Vm.”
The judge then gives four further reasons but these are not important for the purposes of the appeal. “There are a number of problems with this submission, it seems to me. a. Dr Holliday’s evidence does not attempt to calculate ‘on the bond’ readings. His report refers to ‘close to the bond’, which he equates to the experimental readings obtained at a distance of 1 mm: ‘Furthermore, close to the bond the electric field intensity would need to be increased by a factor of at least 5.5 times.’ b. According to Dr Holliday’s table ... a measurement of 150 Vm at 10 mm (1 cm) equates to a ‘close to the bond’ reading of 403 Vm at a distance of 1 mm (150 x 5.43/2.02), rather than 891. c. The initial evidence of Dr. Holliday was that powering down by 2.6 dB equated to a reduction of 62% in terms of RF field intensity. However, he did not disagree – despite an overnight adjournment – that a 2.6 dB attenuation meant that a reduction from 150 to approximately 70 Vm was likely, even though that calculates to 46%. The attenuation factor of 1/1.36 (for which there was no evidence) suggested by Mr. Lamb in fact equates to 73%. d. An attenuated figure of 70 Vm at 1 cm would equate to 188 Vm at 1 mm (70 x 5.43/2.02) and not 655 Vm.” The judge then gives four further reasons but these are not important for the purposes of the appeal.[25]The appellants challenge each of the judge’s reasons which I have quoted but in particular they say that their calculations were right and the judge’s (at b. and d.) were wrong. This had a significant effect on the judge’s rejection of other parts of Dr Holliday’s evidence, notably that any over heating of any part of the body was significant because of conduction and resonance within the body. Mr. Lamb says that the judge should not have done his own calculations without putting them to the parties.[26]I will start with the judge’s response to Mr. Lamb’s submission. As I have said Dr Holliday’s table showed that the field intensity was 5.43 times higher 1 mm from the bond than it was at 10 cms. At 1 cm it was 2.02 times higher. Mr. Lamb’s submission was based on the assumption that it was 12 times higher at the bond. No evidence to this effect had been given and the judge had specifically warned against the introduction of material after cross-examination of the experts. Nevertheless Mr. Lamb says that one can extrapolate a factor of 12 from the graph which Dr Holliday produced to accompany his table. However, Dr Holliday’s experiment did not attempt to measure the field intensity at the bond and his evidence was that you could not calculate it. He accepted in cross-examination that 1 mm was the nearest anyone working in the vicinity of the bond would get to it because they were clothed. If, nevertheless, extrapolation from the graph was legitimate this was something which should have been explored in evidence but it was not. Thus it seems to me that the judge’s pointa. was appropriate and his calculationb. follows.[27]Mr. Peter’s measurement of 150 Vm at the bond was made before the power was reduced. If his measurement was to be used (as the appellants understandably wanted because it was the highest accurate measurement recorded) it had to be reduced to take account of attenuation of the power. The judge at c. accurately records Dr Holliday’s evidence. The percentages which the judge uses are accurate although at first sight a little confusing. The reduction of 70 Vm is a reduction of 54%. Mr. Lamb was contending for a reduction of only 26%. There was no evidence to support the 26% and no explanation for it was provided to the judge. The appellants’ skeleton argument for the appeal contains two pages of complicated calculations which they say show that 26% was mathematically correct. But there is no way in which the judge could be expected to have done such calculations himself. Having given the warning which he did, I think he was quite right to reject Mr. Lamb’s assertion that only a 26% reduction was called for. The judge’s calculation at d. is based on Dr Holliday’s evidence at the trial which he was given the opportunity to correct over night but did not do so. Based on a reduction to 70 Vm the judge’s calculation is correct.[28]However the judge’s findings are not undermined even if the field intensity was only reduced by 26%. This reduces the judge’s 403 Vm in b. to 298. That is of course above the investigation level but exposure to radiation from the winch bond at 1 mm could only have affected very small areas of the body. 298 Vm is well within the equivalent body part SARs to which I have referred in paragraph 4.[29]Standing back from all this detail the appellants’ case based on Mr. Peter’s measurement was only a very small part of the whole picture which the judge had to consider. His unchallenged finding was that there was no direct contemporaneous evidence that the levels of RF at the appellants’ place of work were above the investigation level. This was based partly on evidence, which he accepted, that after powering down all the readings taken were below the investigation level.[30]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.[31]For these reasons I can see no grounds for criticising the judge’s rejection of Dr Holliday’s evidence.[32]Although this point does not feature in the Notice of Appeal Mr. Lamb also submitted that the judge’s reason for saying he preferred Dr Llewelyn’s evidence to that of Dr Metcalfe was wrong. He said:
“In so far as it is necessary to choose between them, I prefer the evidence of Dr Llewelyn, on the grounds that he has had experience of seeing at least four other workers who had been over-exposed to RF radiation, an experience not shared by Dr Metcalfe before the claimants were referred to him by Dr Schilling.”
It is conceded that the judge got this wrong. Dr Llewelyn was not more experienced than Dr Metcalfe. But I do not think the judge’s finding about this evidence was crucial to his conclusions. Dr Metcalfe had assumed that the appellants had been over-exposed and his conclusion was based on reading the literature. It was Professor Blakemore’s evidence which persuaded the judge to reach the conclusions he did. ECHR “In so far as it is necessary to choose between them, I prefer the evidence of Dr Llewelyn, on the grounds that he has had experience of seeing at least four other workers who had been over-exposed to RF radiation, an experience not shared by Dr Metcalfe before the claimants were referred to him by Dr Schilling.” It is conceded that the judge got this wrong. Dr Llewelyn was not more experienced than Dr Metcalfe. But I do not think the judge’s finding about this evidence was crucial to his conclusions. Dr Metcalfe had assumed that the appellants had been over-exposed and his conclusion was based on reading the literature. It was Professor Blakemore’s evidence which persuaded the judge to reach the conclusions he did. ECHR[33]Jackson J has dealt with the appellants’ application to add the ECHR point. I agree that they should not be allowed to do so for the reasons he gives. Conclusion Conclusion[34]For these reasons I think this appeal should be dismissed. Mr. Justice Jackson: Mr.

Justice Jackson:

[35]I agree with the judgment of Lord Justice Tuckey on the main issues in this appeal. In this judgment I deal only with the application for leave to amend the grounds of appeal, in order to raise a new point based on the European Convention on Human Rights. The proposed amendment The proposed amendment[36]This reads as follows:
“By failing to determine the cause of the claimants’ symptoms and by failing to tackle the diagnosis issue the judge has deprived the claimants of a remedy for breach of their human rights – respect for health and physical integrity Art 8 of ECHR. Any attempt by the claimants now to establish the true diagnosis of radiation sickness would be met with a plea of issue estoppel.” “By failing to determine the cause of the claimants’ symptoms and by failing to tackle the diagnosis issue the judge has deprived the claimants of a remedy for breach of their human rights – respect for health and physical integrity Art 8 of ECHR. Any attempt by the claimants now to establish the true diagnosis of radiation sickness would be met with a plea of issue estoppel.”
[37]Lord Justice Kennedy indicated at the outset of the hearing that we would hear substantive submissions on the new point (in conjunction with any submissions concerning leave to amend) and then rule upon the application to amend at the conclusion of the appeal. Mr Lamb’s submissions on the Human Rights point Mr Lamb’s submissions on the Human Rights point[38]I hope Mr Lamb will forgive me if I pass over those submissions which faded away during argument and concentrate on his main contentions. These may be summarised as follows: i) The recent decision of the Court of Appeal in Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932 has brought home to the claimants’ advisers that there is a human rights aspect to this case. That aspect was not previously apparent. Hence the point was not raised before the judge below. Nor was the point raised in this appeal until the application to amend was launched some two weeks before the hearing. ii) Riggers on transmission masts work in an environment where they are exposed to unknown dangers, because scientific knowledge is incomplete. iii) The exposure of the claimants to electromagnetic radiation whilst they worked on the Redruth mast was a breach of Article 8 of ECHR. iv) The principles stated by the House of Lords in Read v Lyons [1947] AC 156 may now need to be revised in order to impose strict liability for any injury caused in such a situation. See the reasoning of the Court of Appeal in Marcic at paragraphs 111 to 118. v) One of the defendants, the BBC, was a public authority and obliged by section 6 of the Human Rights Act 1998 to act in compliance with Article 8. vi) The court below was a public authority and obliged to decide the case in accordance with Article 8 (although not cited by counsel during the trial). By failing to arrive at any diagnosis of the claimants’ illness, the judge wrongfully closed off the Article 8 route, which should have been open to the claimants. vii) The Court of Appeal is a public authority and obliged to decide this case in accordance with Article 8. Accordingly,(a) the Court of Appeal should allow the proposed amendment and(b) the Court of Appeal should order a new trial at which the claimants’ claim will be determined compliantly with Article 8. Analysis i) The recent decision of the Court of Appeal in Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932 has brought home to the claimants’ advisers that there is a human rights aspect to this case. That aspect was not previously apparent. Hence the point was not raised before the judge below. Nor was the point raised in this appeal until the application to amend was launched some two weeks before the hearing. ii) Riggers on transmission masts work in an environment where they are exposed to unknown dangers, because scientific knowledge is incomplete. iii) The exposure of the claimants to electromagnetic radiation whilst they worked on the Redruth mast was a breach of Article 8 of ECHR. iv) The principles stated by the House of Lords in Read v Lyons [1947] AC 156 may now need to be revised in order to impose strict liability for any injury caused in such a situation. See the reasoning of the Court of Appeal in Marcic at paragraphs 111 to 118. v) One of the defendants, the BBC, was a public authority and obliged by section 6 of the Human Rights Act 1998 to act in compliance with Article 8. vi) The court below was a public authority and obliged to decide the case in accordance with Article 8 (although not cited by counsel during the trial). By failing to arrive at any diagnosis of the claimants’ illness, the judge wrongfully closed off the Article 8 route, which should have been open to the claimants. vii) The Court of Appeal is a public authority and obliged to decide this case in accordance with Article 8. Accordingly, (a) the Court of Appeal should allow the proposed amendment and (b) the Court of Appeal should order a new trial at which the claimants’ claim will be determined compliantly with Article 8. Analysis[39]Since Marcic is the foundation, and indeed the inspiration, of Mr Lamb’s new line of argument, it is first necessary to examine what the Court of Appeal decided in that case. The claimant, Mr Marcic, suffered repeated incidents of flooding around his home because the sewerage system maintained by the defendant was inadequate to cope with the current volume of sewage. The Court of Appeal held that the defendant was liable(a) for nuisance at common law and(b) for breach of Article 8 of ECHR.[40]In the obiter passage upon which Mr Lamb relies the Court discussed what the position would have been, if the defendant were not liable upon conventional nuisance principles (e.g. because flooding was infrequent and the cost of rectification disproportionate). Lord Phillips MR, delivering the judgment of the Court said this:
“113. ... It seems to us at least arguable that to strike a fair balance between the individual and the general community, those who pay to make use of a sewerage system should be charged sufficient to cover the cost of paying compensation to the minority who suffer damage as a consequence of the operation of the system. 114 . This result would be achieved if the principle in Rylands v Fletcher LR 3 HL 330 were to be applied to sewage, although, as we have indicated above, it is questionable whether this could be achieved without a degree of modification of legal principle. Such modification may, however, be necessary if our common law is to march in step with the requirements of the Convention.” “113. ... It seems to us at least arguable that to strike a fair balance between the individual and the general community, those who pay to make use of a sewerage system should be charged sufficient to cover the cost of paying compensation to the minority who suffer damage as a consequence of the operation of the system. 114 . This result would be achieved if the principle in Rylands v Fletcher LR 3 HL 330 were to be applied to sewage, although, as we have indicated above, it is questionable whether this could be achieved without a degree of modification of legal principle. Such modification may, however, be necessary if our common law is to march in step with the requirements of the Convention.”
[41]In support of this conclusion the Court referred to the decision of the European Commission of Human Rights in S v France (1990) 65 DR 250, in which a local resident recovered compensation for noise and nuisance created by a nearby power station.[42]I can well understand how the principles emerging from S v France and Marcic might apply to a resident in the immediate vicinity of a transmission mast. If such a resident could prove that personal injury or damage to property had been caused by electromagnetic radiation, then Article 8 may require that he has a remedy against any relevant public authority. The common law requirements of unreasonable user (in the case of nuisance) and lack of reasonable care (in the case of negligence) may have to yield in the face of European human rights law.[43]This case, however, is different. It is a claim for damages for personal injuries suffered in the course of employment. It is not conceptually different from such a claim made by any employee who is employed to work in a dangerous environment, for example on high scaffolding or near a furnace. No authority has been cited which suggests that Article 8 has ousted established common law principles in dealing with claims for compensation by workmen who are injured in such circumstances.[44]When pressed in argument to cite any authority in support of his Article 8 claim beyond Marcic , Mr Lamb referred to pages 5 and 61 of Mulcahy, “Human Rights and Civil Practice” (Sweet & Maxwell, 2001). He drew attention to footnote 58 on page 61. This footnote cites two cases on corporal punishment, which (as the Court pointed out) seem far removed from the present problem. After over night research Mr Lamb cited one further authority, namely the decision of the European Court of Human Rights in Hatton v The United Kingdom (2 nd October 2001), with particular reference to paragraphs 95-116.[45]The passages cited in Mulcahy on “Human Rights and Civil Practice”, although illuminating, do not provide any foundation for Mr Lamb’s wide-ranging submissions. Furthermore Hatton v The United Kingdom involved the application of Article 8 in a wholly different (and more familiar) situation, namely aircraft noise interfering with the applicants’ private and family lives and their homes.[46]In my view, the application for leave to amend the notice of appeal should be refused for five reasons: i) The limited authority cited by Mr Lamb does not support his proposed argument. ii) Before this Court adjudicates upon submissions of such far-reaching importance relating to the Convention and the Human Rights Act, the matter requires to be fully researched and argued. iii) The point was not taken before the judge below. Since this appeal is proceeding as a review pursuant to CPR rule 52.11 (1), it is difficult to see how the judge fell into reviewable error, in failing to devise a novel line of argument which had not been suggested to him. iv) On the judge’s findings of fact, the claimants did not suffer from radiation sickness. For the reasons explained by Lord Justice Tuckey, the judge was entitled to make that finding without going on to make some other specific diagnosis. Accordingly, one plank of Mr Lamb’s human rights argument falls away. Nothing in the Strasbourg jurisprudence either casts doubt on the correctness of the House of Lords’ decision in The Popi M [1985] 1 WLR 948 or undermines Lord Justice Tuckey’s analysis of the “diagnosis” issue. v) The amendment has emerged at a late stage in this appeal, giving rise to the difficulties mentioned in (ii) above. i) The limited authority cited by Mr Lamb does not support his proposed argument. ii) Before this Court adjudicates upon submissions of such far-reaching importance relating to the Convention and the Human Rights Act, the matter requires to be fully researched and argued. iii) The point was not taken before the judge below. Since this appeal is proceeding as a review pursuant to CPR rule 52.11 (1), it is difficult to see how the judge fell into reviewable error, in failing to devise a novel line of argument which had not been suggested to him. iv) On the judge’s findings of fact, the claimants did not suffer from radiation sickness. For the reasons explained by Lord Justice Tuckey, the judge was entitled to make that finding without going on to make some other specific diagnosis. Accordingly, one plank of Mr Lamb’s human rights argument falls away. Nothing in the Strasbourg jurisprudence either casts doubt on the correctness of the House of Lords’ decision in The Popi M [1985] 1 WLR 948 or undermines Lord Justice Tuckey’s analysis of the “diagnosis” issue. v) The amendment has emerged at a late stage in this appeal, giving rise to the difficulties mentioned in (ii) above.[47]Accordingly, in agreement with Lord Justice Kennedy and Lord Justice Tuckey, I consider that the claimants’ appeal should be dismissed. Lord Justice Kennedy Lord Justice Kennedy[48]I agree with both judgments.

Order

Appeal dismissed with costs. Subject to detailed assessment. (Order does not form part of the approved judgment) Order: Appeal dismissed with costs. Subject to detailed assessment. (Order does not form part of the approved judgment)

Cited in 1 later judgment