SILICA – A STORM OR A GUST

Andrew Lumb, Nevett Ford

Silica has been a topical subject of late. The National Occupational Health and Safety Commission has from 1st January 2005 amended the National Exposure Standards for crystalline silica, and for quartz the standard has been changed from 0.2mg per m3 to 0.1mg per m3, to be measured in accordance with the new methodology for sampling and gravimetric determination of respirable dust in AS2985-2004.

From the writer’s non-technical perspective, it is understood that the intention is to reduce the potential incidence of silicosis by a reduction in the exposure standard, but the new methodology means that a direct comparison between the level of the previous standard and the amended standard cannot be made.

A report, “Silica – A Litigation Sandstorm” issued by Guy Carpenter & Company in October 2004, and an update issued in February 2005, are of interest in gaining an understanding of the extent of the potential exposure to legal liability posed by silica related claims.

Guy Carpenter & Company is an international risk and re-insurance specialist and part of the Marsh & McLennan insurance group. These reports are mainly concerned with litigation trends in the USA but are nevertheless informative.

They also assume that silicosis is an occupational disease related to prolonged exposure to silica dust in workplace situations where particular processes take place.

Readers of this journal may recollect a report last year of a planning appeal in which an attempt was made to treat silica as an environmental issue, it being argued that a proposed sand extraction business could create airborne silica posing a threat of contracting silicosis to residents of a house some hundreds of metres away. This argument did not succeed and certainly the Guy Carpenter & Company reports assume that silicosis is entirely an occupational risk.

In their first report Guy Carpenter & Company made comparisons with the early days of asbestos litigation. They report an influx of silica claims in the USA, an example being a report in the Wall Street Journal that one of the largest US manufacturers of products involving silica faced 22,000 claims in the year 2003 compared with 3,505 in the year 2002.

They note silica’s broad range of uses and the number of workers who come into contact with the substance in the course of their jobs. One possible reason suggested for the sharp spike in the number of claims is the increasing tendency to file asbestos and silica claims as a package, particularly in cases involving workplaces, such as construction sites, where there may have been exposure to a number of products.

Other reasons mentioned tend to be related to the more bizarre excesses of the American legal system, e.g. lawyers advertising for asbestos claims who offer free screenings, often by means of mobile units.

Statutory limitation periods applying to the commencement of actions also has resulted in persons lodging claims who are not presently sick but have had exposure to silica. These persons are referred to rather unfeelingly in the report as “the worried well”.

However the second report, some four months later in February 2005, rather surprisingly does something of a back flip, but remember that these reports are only about legal liability and in particular in the context of the USA. It appears that there has been some hardening in the approach of US courts to these claims.

For instance, some support has emerged for arguments by manufacturers of products that if they sell products used by companies in industrial processes it is up to those companies, rather than the manufacturer, to issue appropriate warnings and to put in place systems for employees to use the product safely.

However, of more general application is that in the USA the number of deaths with silica as a cause has fallen from 1,157 in 1968 to 187 in 1999, as against the number of deaths with asbestos as a cause which has risen from 77 in 1968 to 1,265 in 1996. The report makes reference to data from a US report as to the numbers of US workers exposed to respirable crystalline silica and lists the exposure of various industries. Mining and quarrying are dealt with on the basis that 100% of workers are exposed.

This data which does go back quite a few years is not surprisingly questioned, and the conclusion is that the number of silica related claims has consistently fallen in a significant way for many years because fewer workers are exposed and generally speaking there has been considerable progress in preventative measures as a result of increasing consciousness of the dangers to workers of exposure in the workplace to respirable silica.

The conclusion reached is that silica is viewed as unlikely to create a crisis of the dimensions of asbestos so far as legal claims are concerned. It is pointed out that deaths from silica are only 12% of those from asbestos and declining, while the asbestos death rate is accelerating.

Nevertheless there may be only small comfort in comparing the likely legal exposure to the position with asbestos. If we go back to the starting point of the first Guy Carpenter & Company report there has been a sharp spike in silica related claims in the last 2 or 3 years and litigation trends in this country often follow those in the USA.

More pertinent to CMPA Members is the obligation to comply with the new National Exposure Standard of 0.1mgs per cubic metre. It is also important to remember that any comfort which can be drawn from the improving statistics over the years is almost certainly attributable to increasing awareness of the problem and to higher occupational standards.

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