Raising A Novel Legal Point by Sylvia Mortoza - 12 May 03, NFB
Not so long ago we said that it would seem that the victims of arsenic poisoning have a strong case against BGS and that we shall be watching the legal proceedings now underway in London with interest. Since then there have been developments as the lawyers for the Bangladesh Government argued at a preliminary hearing that the British Geological Survey (BGS) does have a case to answer and now, according to a Press Release issued on May 8, 2003, there has been a victory of sorts for the Bangladeshi arsenic victims because Mr Justice Simon has dismissed the Defendant, the Natural Environment Research Council's application to strike out the victim's claims.
Leigh Day & Co and Alexander Harris represent approximately 750 Bangladeshi villagers suffering from arsenic poisoning, who claim that the British Geological Survey (`BGS', a part of the NERC) was negligent in their failure to test for arsenic when they carried out a survey in 1992 on the toxicity of Bangladeshi well water. It is the Claimants' case that if the BGS had carried out the necessary tests they would have identified the very high levels of arsenic contamination in the water. Instead, they gave the water a clean bill of health and as a consequence the Claimants continued to drink the water that was highly contaminated for a further 5-6 years before the first arsenic victims were diagnosed.
The Claimants all suffer from arsenic related diseases. The lead case, Mr Binod Sutradhur, has been diagnosed with painful ulcers on his hands and feet - typical of arsenicosis, and is much more vulnerable to skin cancer and other forms of cancer. But the Defendants sought to argue that they did not owe a duty of care of the victims, and that the case should not proceed to trial. Mr Justice Simon, dismissing the Defendant's application, concluded that this case raises a novel point in the developing area of law on the reliance of technical reports and that there is a case for the Defendants to answer, which should be decided at a full trial.
Martin Day of Leigh Day & Co said, "The arsenic poisoning in Bangladesh has been a tragedy for many thousands of villagers that may well have been prevented, or certainly ameliorated, if the Defendants had done their job properly. It is important for British justice that the Defendant's liability is properly resolved by this case going forward to a full trial. I am very pleased that the Court has today rejected the Defendants attempt to block this happening.'
The case against the British Geological Survey (BGS) is that it was negligent in not testing for arsenic when it conducted a pilot project assessing ground water in central and north-eastern Bangladesh in 1992. The water quality survey in 19 wells was reported in "Hydrochemical Character of the Main Aquifer Units of Central and North-eastern Bangladesh and Possible Toxicity of Groundwater to Fish and Humans" (Davies J and Exley C, 1992, BGS Technical Report WD/92/43R), and also in the "The Hydrogeochemistry of Alluvial Aquifers in Central Bangladesh" (J. Davies, in: Groundwater Quality; H.Nash and GJH McCall (eds). Chapman Hall, 1994). The abstract to the second paper states, "The groundwaters are all of Ca(HCO3)2 type, suitable for crop irrigation and domestic use." This paper appeared three years after the Indian PHED Report of 1991 into the arsenic crisis in West Bengal and in the same year as "Arsenic contamination of six districts in West Bengal, India: the biggest arsenic calamity in the world (Das et al. 1994, Analyst, 199, 168-170). Yet in neither of these BGS articles mentions arsenic although, according to experts, the data contains many very clear chemical pointers to its presence (high phosphorus and iron, highish bicarbonate).
Although the search is on for an effective and sustainable solution, a concentration on engineering devices and/or chemical treatment technologies for removing arsenic has shifted the focus away from where it ideally should be - on the victims. There has also not been much effort to understand the preferences of rural households. As these are critical gaps, they must be filled immediately because people are getting sicker and because communities are reluctant to accept technologies that are less convenient than the hand pump technology. With around 29 million people in Bangladesh drinking water containing arsenic in excess of 50 mg/L and more than 46 million drinking water containing arsenic in excess of 10 mg/L, a lot is hanging on the outcome of this case.
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