UK: House of Lords delays financial justice for arsenic-poisoned Bangladeshis
The Lancet 2006; 367:199-200
Bangladeshis poisoned by arsenic sue British organisation
A British group that gave Bangladesh's arsenic-contaminated water a clean bill of health is being sued by hundreds of people who claim they were poisoned after drinking from unsafe wells. The case hinges on whether scientists working abroad should have a duty of care. Daile Pepper reports.
Hundreds of Bangladeshi people who claim they were poisoned because of the actions of a British organisation have had their House of Lords hearing, originally planned for this month, postponed until May 22.
The villagers are appealing to the UK Parliament for the right to sue an organisation they say labelled a water supply safe for drinking-without testing for one of the world's deadliest contaminants.
It is their last chance to appeal against a decision already made to deny them the opportunity to confront the issue at trial.
The group, led by Bangladeshi villager Binod Sutradhar, desperately want the House of Lords to rule that the organisation at the centre of the world's biggest mass poisoning owes a duty of care to the millions of people who have been exposed to arsenic since 1992.
It is a case which could have global repercussions and raises the question: should Western organisations which perform charitable operations in developing countries be held to the same standards as they would be if the actions were undertaken in Britain? And does a lack of proximity to the damage supposedly done mean less responsibility is held? So far British judges are split.
In 1992, the British Geological Survey (BGS), part of the Natural Environment Research Council (NERC), went to Bangladesh to test the toxicity of ground water in the country's central and northeast areas.
Groundwater is relied on by more than 90% of the Bangladeshi population. Millions of people had been drinking unsafe water by tapping into the resource with tubewells donated by charities.
The BGS report, funded by the Overseas Development Agency, gave the water a clean bill of health. But it failed to test for the one contaminant that turned out to be doing damage - arsenic. The naturally occurring poison has been linked to gangrene and various cancers, causes scaling of the skin and damages internal organs.
The reportwhich the NERC contends was for agricultural use onlywas then relied upon by the Bangladesh government, who did not have the means to conduct their own tests, to certify that the water was safe to drink.
Around 750 Bangladeshi villagers have banded together to accuse the NERC of negligence. But just getting the case into a court room for trial is proving difficult.
Their last chance to appeal against a decision not to allow the case to proceed comes down to the House of Lords, who will hear their appeal on May 22.
The lawyer representing the group, Martyn Day, of Leigh Day and Co, says there is no doubt that if this survey had been carried out in the UK the NERC would be held to account.
“The same standards should apply when a developed world organisation like the BGS operates in the developing world”, he says.
“It was failing to make it clear that there was arsenic in the water that led to people assuming that the water was safe to drink.”
He says that if the study had been done properly whole villages could have been saved, people would have been warned, and programmes to help the affected would have been brought forward by years.
But the NERC refutes any claim they were negligent at all, saying the report was written for the Overseas Development Agency and was never intended for use by the Bangladesh government.
Day disputes this. “There would have been no purpose except for the Bangladesh government to use it to decide public health matters”, he says.
But the NERC maintains the report served the purpose it was intended for. “This pilot survey was manifestly not directed at establishing the general potability of the waters”, a spokeswoman said.
“It was conducted by a hydrologist, not a drink water supply scientist, and was concerned with much narrower issues. The report clearly identified the limited number of elements and compounds that were tested for. Nothing else was tested for, as is clear from the report itself.”
But scientists working in the Bangladesh area at the time read the report, compiled by an organisation with an impeccable reputation, as giving the green light for people to drink the water.
Dipankar Chakraborti, director of Jadavpur University's school of environmental studies, was the first to diagnose arsenic poisoning in people living in Bangladesh.
He says that the BGS should have known to test for arsenic because at the time surrounding areas were already suffering from problems associated with the contaminant.
He believes the organisation should be made to answer for its actions.
“They are negligent in failing to test for arsenic and failing to highlight the fact that they did not test for it”, Chakraborti says.
Day has fought hard to get this case to trial, but previous appeal court judges have raised several concerns before finding there was no legal basis upon which the case should proceed.
Proximity is an important element in determining whether a duty of care exists to the people of Bangladesh.
Day says that where the funding for the work came fromin this case the British governmentshould have no bearing. The same standards should apply throughout the world.
“The fact that in doing wrong they have caused damaged to a lot of people doesn't impact on the fact that they have done wrong”, he says.
But as Lord Justice Kennedy of the Supreme Court of Appeal said: “In the language of lawyers the relationship between the claimant and the defendant was not sufficiently proximate to give rise to such a duty [of care].”
It would be a mighty leap to suggest that a pilot project could be used to sue those who carried out the tests, the Judge said.
The NERC points out that duty of care is a legal concept, not a moral one. “In denying that they had a legal duty of care towards the claimant in this caseand other similarly afflicted BangladeshisNERC is saying that, although they have profound sympathy for his predicament, and are doing their best to alleviate it, they are not responsible for it”, their spokeswoman says.
Among other reasons given by judges for ruling out the possibility of debating these issues at trial are the probable cost to the British tax-payers of a ruling against the NERC.
And the NERC believes a finding against them following a full trial could have devastating consequences for future scientific work in foreign aid and other similar work in developed countries.
“Were the court then to find, following a full trial of all the issues, that scientists carrying out research could be held liable for not having examined a particular issue not central to the research in question, this would clearly have much wider implications for scientific research in all fields”, their spokeswoman said.
“Not only those involved with foreign aid projects, but also scientists conducting pure investigative research in the developed world and elsewhere, might well be deterred from undertaking projects of real value in consequence.”
Day says the issue is that if the BGS did not do a proper job they should be made to pay. “There is a general concern that when companies go out to the developing world that it is like a charitable job and anything within reason will do”, he said.
“But the job you do there should be as good as you would do here. That should be a standard test.”
Amir Attaran, a professor in law and population health at the University of Ottawa, says this case is extremely important. It seems as though if you make a mistake that affects millions your liability is reduced, rather than increased, he says.
“This is the case that will first decide whether in normal public health where we are treating millions of people and caring for millions of people the same duty applies as in medicine where we are taking care of one person”, he says.
While the NERC worries that a finding against them and their work in this case could have ripple effects throughout the world of foreign aid, Day and the villagers he represents hopes it does.
“I hope that it will send a message across all these companies who operate across the developing world, that when it comes to funding work done in the developing world that they should be expecting the standard to be what we would say is the proper standard here.”