Sloper v Lloyds Bank – a salutory example of the difficulties faced by some mesothelioma victims

The decision in Sloper v Lloyds Bank this week is a stark reminder of the type of challenges faced by some mesothelioma victims when they have not worked directly with asbestos and are seeking to bring a successful legal action.

Carole Sloper was only 54 years old when she was diagnosed with mesothelioma in November 2014. Her claim against her former employer, Lloyds Bank, centred around her belief that she was exposed to asbestos whilst working at two Lloyds Bank branches on the Isle of Wight over 30 years ago. She believed that in the two branches where she had worked the banks had suspended ceilings which had asbestos tiles and that during maintenance when tiles were removed and when strip lights were changed she was exposed to asbestos dust being disturbed.

The judge, Mr Justice Spencer, found there to be serious doubts over the reliability of the evidence given by Mrs Sloper and her witnesses, due to contradictions he considered there to be in that evidence and that defence witnesses and documentary evidence produced pointed to there not being suspended ceilings in the branches and there being no asbestos tiles present. Ultimately he considered that Mrs Sloper had failed to show on the balance of probabilities that there was either a suspended ceiling in the branches or that they had asbestos tiles.

During submissions, defence barrister, David Platt QC, referred the judge to comments made by Lord Pentland, in deciding the Scottish mesothelioma case, Prescott v The University of St Andrews, earlier in the year. Lord Pentland had stated, The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. The Prescott case as with the Sloper case concerned whether a mesothelioma victim who had not worked directly with asbestos would be able to show that they had been negligently exposed to asbestos sufficient for liability to be established. Robert Prescott was a lecturer at the University of St Andrews, when over 35 years ago he believed he had been negligently exposed whilst renovation work was being carried out on the University library. The judge concluded that Mr Prescott’s recollection of events was unreliable and alongside inconsistencies in his evidence led to a finding that he had not proved that he was exposed in the words of the judge to dangerous quantities of asbestos.

It is without doubt that mesothelioma victims, especially those who have not worked with asbestos, are severely hampered by having to try to remember events 30-40 years previously, which will lead to the almost inevitable inaccuracies and potential contradictions in the evidence they provide. Many such victims will have little awareness of asbestos and where it may have been present in the places they worked.

Perhaps there was no asbestos present in the places Mrs Sloper worked, we will never know. But we do know that she has mesothelioma. She is another victim of the invidious nature of asbestos. It might have been that she was exposed at school, but of course it is even less likely that as children we would be able to 30-40 years later remember the necessary details that might lead to a successful legal action. Clearly Mrs Sloper was not appropriately protected as she was exposed to asbestos at some point in her life, and she is paying the ultimate price for that failure.

Again it must be asked how can we be sure that in 30-40 years time there will not be victims of asbestos who have been exposed in situations where the asbestos in situ has been supposedly safely managed by being sealed in?

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The eagle has landed – a bald drone story or an important pointer on drone control?

The recent story that the Metropolitan Police are considering trialling/ will use (depending on the source read) eagles to control miscreant drone use raises some important and interesting questions over civil drone use policy in the UK.

I have to admit when I read the story of eagles being used to capture drones I had to do a quick check on the date to make sure it was not April 1st. But the video released alongside the story clearly shows that an eagle can be trained to catch a small drone and bring it back down to earth without injuring itself, although whether that would be possible to do so safely outside of controlled conditions, with larger machines is questionable.

The fact that the Metropolitan Police are willing to consider such a possibility highlights a very serious message – as things stand it is not possible to adequately prevent drone misuse, and as such anything will be considered.

There continues to be a lot of talk about the need for more drone regulation. But on what basis can more regulation be justified when it appears so difficult to enforce existing regulations?

So we need to ask in reality if there a problem and what is the extent of it if there is, and can new regulations play any meaningful part in alleviating drone related problems? One of the big fears surrounding drone use is they could bring down a manned aircraft if a drone gets sucked into an aircraft engine. The Airprox Board which investigates near misses between aircraft in UK skies, has released reports of 19 near misses between drones and manned aircraft in 2015. In all 19 cases it was not possible to identify the pilot of the drone. One of the near misses occurred on the 22nd September when a Boeing 777 which had taken off from Heathrow Airport and was flying at 2000 feet over the Houses of Parliament had a drone fly within 25 metres of it. The investigation found that avoidance action by the plane had not been possible and the risk of collision between the Boeing and drone was high.

Another major area of concern relates to the surveillance potential that is made possible via drone technology use. Whilst we have applicable data protection and privacy laws, again there is this problematic question of enforcement.

It is important however to recognise that surveillance can be used in both negative and positive ways. It may be visualised that the recent floods in Northern England and Scotland provided an ideal type of situation by which the benefits of drone technology might be clearly seen, by for example enabling the identification of those in peril more quickly, assessing the impact on key infrastructure, and the possibility of flying rapid emergency supplies to those cut off.

Recently published research by a team from the University of Zurich has looked into ways that drones may be used in a cheap and effective way to help in the search and rescue of missing people, as in the forests and mountains of Switzerland around a thousand people annually go missing. The researchers have developed artificial intelligence that enables drones to automatically identify and follow man made trails. Whilst this work may save lives, it is of course a short journey to envisage how such technological developments could be used in a negative, subversive way, both by governments and criminals.

The UK Government who are currently consulting on the civil use of drones in order to develop future policy, are acutely aware of the risk of over burdening the developing civil drone industry with additional regulations. The U.S. and Ireland have both chosen as part of their drone control strategies to go down the registration route, but this by itself cannot directly identify drone misuse. Whilst eagle trainers may hope they can play a part in drone control, technology is going to be the real bird of prey in this respect, and if there are to be new regulations then a possible development may be in the provision of legally binding requirements on drone manufacturers to include control technologies within their products; so for example the inclusion of technology that enables an external identification of the drone to be achievable, and blocking technology preventing the drone from flying in unauthorised airspace as part of the software of the machine.

 

Sunday Times drone jamming report raises interesting issues

Today’s report in the Sunday Times that jamming equipment is being installed to prevent drones flying over sensitive sites should come as no surprise. My understanding is that at least one Premiership football club have been using jamming technology for some time to prevent drones flying over their ground.

It does raise some interesting questions. Outside of the security services jamming of radio signals, such jamming is illegal under the Wireless Telegraphy Act 2006, so there is the issue of ensuring that any blocking of signals is being carried out legally. The scope of the blocking is a further matter of concern. There is it seems the strong likelihood that radio signals will be affected outside of the immediate zone of protection. Whilst the jamming technology may be set to block signals on the commonly used frequencies for drone flying, what of drones being flown outside of those frequencies?

A further question is if jamming technology is blocking the signal to a drone, what will happen to the drone? Will it just fall to the ground, potentially causing injury?  So who would be liable?

 

 

 

The ‘alleged’ rogue Lincoln drone pilot

Lincolnshire Police put out a request this week for information on a drone pilot suspected of flying his drone in violation of the Air Navigation Order Rules whilst filming many of the landmark sites in Lincoln, including Lincoln Cathedral and the University of Lincoln.

The BBC news website picked up on the request, running a  story. The regional BBC news programme Look North also ran a story, in which I gave a short interview on drone regulations.

The ‘alleged’ rogue pilot had put his video footage on YouTube and apparently Lincolnshire Police were made aware of the footage, leading to their request for information as to the identity of the drone pilot. Of course until anyone is actually convicted of an offence under the Air Navigation Order Rules, it will remain an alleged violation of those Rules. But clearly Lincolnshire Police have strong reason to believe that the drone pilot was not commercially licensed by the CAA and from the footage appeared to be in violation of the Rules. Amazingly, if this turns out to be in breach of the Rules, the drone pilot at the start of the video actually filmed themselves.

Given the recent publicity in the UK on drone flying and the applicable rules, and the conviction of several drone pilots which has led to fines in excess of a thousand pounds, it is quite telling that someone should film themselves and then post the footage of the whole flight on YouTube. If they are breaching the applicable Rules, either they are someone who simply does not care, or they have no appreciable understanding of the Rules, which could suggest that a major rethink is urgently required on how to get the information out to the Public on what is acceptable flying and what is not.

Drones, Christmas and the question of safety and insurance

If drones were not quite one of last Christmas’s must have presents, this Christmas may well be different if the proliferation of drones available in stores such as Argos is anything to go by.

With the levels of drone related calls being made to UK Police forces rising rapidly, we can anticipate another sharp spike upwards following Christmas, unless of course there is a sudden appreciation by the legion of new drone flyers for the rules under which drones should be flown.

Following the recent BBC Watchdog programme on drones, in which I was interviewed, a young mother contacted the programme about her 18 month old son, Oscar Webb, who had been hit by a drone and had lost an eye.

Besides the general safety issue, the tragedy of young Oscar Webb raises another fundamental matter where drones are being flown by leisure users, and that is it is highly unlikely in most instances they will actually be covered by insurance.

So there is a double risk; firstly, that the uncovered flyer will face the financial consequences of their drone flying, which potentially could be substantial; and secondly, that an innocent victim of a drone related incident could encounter difficulties in seeking financial compensation for what has happened to them. This could be as a result of either the insufficient financial resources of the drone pilot, or because the drone pilot cannot be identified.

These matters again highlight the need to be able to identify who is flying a particular drone, and the question of whether there needs to be compulsory insurance requirements for leisure drone flyers.

In the UK there are already examples outside of the general air navigation order rules, where those in control of property, such as the London Royal Parks, have banned the use of drones on safety grounds. It is all very well banning drones, but can enforcement of such a ban be achieved? This can be highly problematic where those flying drones cannot be identified. We have seen the United States and Ireland propose to go down the registration route, but that of itself does not guarantee identification, and the possibility of identification technology within the drone is a likely requirement for the future.

Another technology, Geo fencing, which aims to prevent aircraft entering specific locations via programming, is another technology that is likely to become mainstream over time. However, other methods of preventing drones from flying in specific locations could be utilised. It would not be a surprise to hear that organisations, such as sports clubs who have large numbers of people in attendance at events, are actually blocking drone control frequencies to prevent drones flying close to an event. This it has to be said is illegal in the UK under the Wireless Telegraphy Act 2006, but those blocking signals would no doubt seek to argue they were doing the blocking on safety grounds.

With the sad and tragic accident that happened to Oscar Webb, the question of safety and the increasing concerns over the illegal flying of drones lead to the conclusion that it has become a matter of urgency that such matters are effectively dealt with.

Drone registration – the positives and the challenges that remain

The United States and Ireland are both shortly to announce the rules of their compulsory drone registration schemes for leisure drone users. Both countries are seeking to get a registration scheme up and running for the Christmas period when large numbers of new drones are expected to be bought. For the U.S. concerns over the rapidly increasing numbers of drones seen in proximity to manned aircraft has led to a need to quickly identify potential solutions, with registration being an option that is now being taken up. The UK experience of near misses this year highlights the problems for the regulatory authorities. To date this year, Airprox, the body who investigate near misses between aircraft in the UK, has investigated 12 near misses between drones that have involved drones, and in every instance the drone and its flyer could not be identified.

The Expert Group tasked by the US Federal Aviation Administration to recommend proposals for the new US drone registration process have reported back and the FAA are now considering their recommendations and other comments they have received. From the details that have been released it has been recommended that the American scheme will require those flying drones weighing 250 grams or more will have to register on the FAA run database, in contrast to the Irish scheme which appears to be set at a weight of 1 kg or more for registration to be required.

The American Expert Group recommendations would only require a single registration to be made even if a person owns more than 1 drone, with the ID number that is given out at registration having to be displayed on all drones owned by the person registering. Registration under the American scheme will be for the drone owner to do either via the internet or smartphone app.

These are the basic details we have, but is it going to be worthwhile? Obviously it will provide a greater possibility for the regulatory authorities being able to identify those who have violated the applicable flying rules, but it should not be seen as a magic solution for everything. There will remain some serious issues

My personal view is that anything that might focus the minds of the leisure drone flyer in terms of flying their drones safely within the rules, has got to be a positive thing.

Whilst identification might be made easier when reports of drone mis-use are made, much will depend on the precise circumstances in each individual case. If a drone has left the area after allegedly violating air rules, whilst the authorities will have details of who owns drones in a particular area, and have a starting point by which to identify who the flyer may have been, there are likely to remain both resource and evidential problems. How much time and effort will the police use in trying to track down a particular drone and its flyer? A registration scheme of course works best when the drone remains at the scene, for example when it has crashed.

The American Group of experts have it is reported recommended that it will be for the drone owner to register after they have bought their drone. Obviously, there will be large numbers of existing drone owners who will now need to register, but it seems to me a weakness going down this route as there would seem to be the risk that a drone owner simply does not get round to registering. Why not have the registration process as part of the actual purchase? The answer in the US case may be due to those who were on their 25 group expert panel; 5 of whom clearly represented retail interests, with strangely Amazon allowed two representatives. It would seem that their fear was that if the registration process was tied into the purchase this could impact on the sales process and actual sales made by the retail companies.

Another potential issue for states who may look to go down the registration process is who will manage and pay for the registration system? With so many recent examples of personal information being taken from databases there is also now the ever present concern over data security.

It is likely that many countries will watch the U.S. and Irish schemes with interest, and follow suit if they are achieving tangible results.

Sad death of 48 year old former GCHQ employee again highlights the UK’s mesothelioma failings

The recently reported sad death of Jayne Eustace this year from mesothelioma once again shows how we as a nation continue to fail those who have been exposed to asbestos.

Mrs Eustace worked for GCHQ, the Government spy centre, for 7 years, where it is believed she was negligently exposed to asbestos, although like so many mesothelioma victims not working directly with asbestos. A sample from her lung found her to have had 4200 asbestos fibres per gram of lung tissue.

It is perverse that GCHQ which is tasked with protecting the nation could not protect their employees including Mrs Eustace from asbestos exposure at their premises; and of course once diagnosed with mesothelioma, whilst I have no doubt she received the best care available, the simple fact that we as a nation have failed for decades to invest in medical research into mesothelioma meant we failed Mrs Eustace a second time – utterly disgraceful.