Aircraft Air Contamination/Toxic Air Poisoning
On the 21st April 2008 at 8.30pm on BBC 1, Panorama will broadcast their long awaited investigation into the issue of polluted air in aircrafts. This is an issue that understandably is a major concern to not only the public at large, but in particular the airline pilot community.
Adrian Fawden of Simpson Millar LLP has spent the last 3 years investigating the legal implications of polluted air in conjunction with the British Airline Pilots Association (BALPA). Adrian’s investigations have extended to discussions not only with pilots in the UK and Ireland, but also globally including North America, home of both Boeing, a major manufacturer of aircraft, and also Exxon Mobil, a major producer of aviation oil.
Discussions have taken place with unions on both sides of the Atlantic, lawyers, academics and doctors.
Here in the UK to be successful with an action for damages arising from contaminated air, victims must first establish that there is liability on behalf of another party, for example, the operator of the airline, the manufacturer of the aircraft or the provider of the aviation fuel, and that it is this liability which has caused the injuries and symptoms complained of by the injured person.
There is a considerable amount of technical information available which suggests that toxic fumes can enter the cockpit and cabin air areas on a number of aircrafts, and in particular the BAE 146 and the Boeing 757 appear to have a poor track record in connection with fume events. It is, however, in connection with causation, i.e. whether or not these fumes have caused any injury or symptoms that has proved the subject of most speculation.
Indeed, the matter has been the subject of an investigation by the Committee on Toxicity of Chemicals in Food and Consumer Products and the Environment (COT). You can read their latest reports on line at http://cot.food.gov.uk/cotreports/
The final COT report reached the conclusion that on the available evidence that had been presented to them, it was not possible for them to conclude that there was a causal association between cabin air fume events and ill health in commercial aircraft crews.
However, although no causal association could be firmly established it was agreed that a review of the epidemiological data certainly merited further investigation and testing regarding this issue.
Annex 5 to the report contains the review and it describes injuries and symptoms reported over the past few years and comprised some 1509 documents. COT certainly felt that this raised an important concern and a number of tests are now being carried out across airline fleets to measure not only the number of incidents of cabin air fumes, but also the chemicals contained in that air. There has long been a suggestion of the presence of organophosphates within cabin air that are present in a number of types of aviation fuel, and include such chemicals as tricresyl phosphate, to which over exposure can cause nervous system disorders and other symptoms.
One of the difficulties in establishing causation is the lack of any medical test to clearly establish a link between, for example, organophosphate exposure and development of symptoms. There is no traceable "fingerprint" of organophosphates although Adrian Fawden believes that there are some toxicologists in the United States and Canada on the very cusp of developing such tests. In the absence of that “fingerprint” causation has to be established by an exclusionary route proving that the injured person had:
- No previous circumstances of exposure to these types of chemicals.
- That there is a range of symptoms typical of the exposure to these types of chemicals.
- That medical evidence can show that the victim has these symptoms.
The difficulty with the exclusionary route is that it is impossible to exclude all other possibilities that exist generally in the environment. There is also the lack of a proper control group to compare research against.
Medical research into this area is ongoing and certainly the further tests and investigations suggested by the COT Committee and the investigations being carried out both here, North America and Australia, suggest that a breakthrough might be made in the near future.
At the current time people in the UK who feel they may have developed symptoms as a result of contaminated air in aircraft face an uphill task in establishing liability and causation for their symptoms against the airline industry. However, as a breakthrough may lie just around the corner it is important that potential claims are notified to lawyers at the current time, certainly the more information gleaned on this topic will assist those investigating the matter.
Adrian Fawden at Simpson Millar LLP has been instructed by a number of individuals in connection with contaminated air and continues to support and investigate matters on their behalf. The Panorama programme will certainly increase awareness of this issue and hopefully lead to a solution to the potentially lethal problem.