A poisoned chalice
1 February 2003
When the 1970s Bangladeshi government was ad-vised to sink millions of tube wells into the ground in order to stop people from drinking the dirty, cholera-infected surface water, it did exactly as it was told. Quite quickly, more than $500m (£312.2m) was spent digging deeper wells to provide the people of Bangladesh with a reliable source of clean drinking water.
Yet almost two decades later, people started to complain to their doctors about the painful lesions that had appeared on their skin. At first medical experts thought they were dealing with an outbreak of leprosy, a disease that is nowadays very rare. Then, as the symptoms started to develop into gangrene, conjunctivitis, and in some cases a host of internal cancers, doctors started to realise they were dealing with something rather different.
Around about the same time, scientists first started to suggest that Bangladesh's groundwater was riddled with arsenic and had been for some time. It was already well known that arsenic was present in the groundwaters of West Bengal, India. The scientists' fears were confirmed in a 1998 report by the British Geological Survey (BGS), which revealed that around 77 million Bangladeshis could be taking in enormously high levels of arsenic on a daily basis - in some cases 38 times higher than the World Health Organization's water health and safety criteria. Now doctors at Dhaka Community Hospital fear that one in 10 deaths could soon be due to arsenic-related disease.
'Testing for arsenic is one of the constituents of the WTO's guidelines. It wasn't something to have been left out. If they'd tested for it they would have found it' -
Bozena Michalowska, Leigh Day & Co
Questions were soon asked as to why the largest group poisoning in history had been able to take place under the noses of the scientists monitoring the situation. Crucially, it was revealed that in 1992 the BGS had surveyed the quality of water in the same region of the country but had failed to test for arsenic. As a result the final 1992 report concluded that the water from the newly-dug tube wells was entirely safe for humans to drink.
Now a team of UK lawyers has launched a class action against the Natural Environmental Research Council (NERC), the parent body of the BGS. The claim has been made on behalf of around 500 Bangladeshis, who had been happily drinking the infected water for years, not knowing that they were slowly poisoning themselves.
After investigating the villagers' claims for more than a year, lawyers from Leigh Day & Co and Alexander Harris are now pursuing a test case, which they believe will be watched closely by aid agencies and geologists across the world because of its far-reaching implications.
Mounting a suit of this size and scale is no easy task. The UK law firms were initially contacted by Interights, a London-based international human rights law centre. Together with lawyers from the Bangladesh Legal Aid and Services Trust (Blast) and the Bangladesh Environmental Lawyers Association, the team embarked on its quest to compensate the villagers for the environmental catastrophe they had all unwittingly endured.
'Arsenic is not routinely tested for in groundwaters unless there is independent evidence to suggest its presence' - The British Geological Survey
According to a spokesman for Blast, tort actions are very rare in Bangladesh and those that do go ahead are not usually successful. "There's no culture of bringing actions for damages in Bangladeshi courts and very little experience of obtaining any relief through such actions," he commented.
As Sara Hossain, Interights' legal officer for South Asia, recalls, hope of compensation in this country was first sparked by a decision handed down by the House of Lords involving another Leigh Day case.
In the Cape Asbestos case, involving 7,000 South African asbestos miners, the Lords held that foreign claimants could bring about legal action in the UK to gain compensation for personal injury so long as the defendant had a UK parent company.
Hossain adds: "At the start [of this case] we weren't clear that there was any British involvement at all. But we heard that Leigh Day had come across some information about the BGS from scientists and that they'd also met with Bangladeshi legal aid organisations. It just happened that our interests collided."
A trainee's role
Gene Matthews has just finished the first year of his training contract at Leigh Day & Co and spent six months working on the Bangladesh arsenic case from London. Earlier this year, Matthews went to Bangladesh with solicitor Bozena Michalowska on an information-gathering mission.
"It was quite an incredible journey," he recalls. "My main role [in the office] was to assist Bozena with all the medical reports as they came in and to help with the administrative side of the case. With 300 clients it could be a logistical nightmare."
Even though Matthews had moved on to another seat by the time the trip to Bangladesh came up, he was still able to go. "It was very nice to be given the responsibility to go out there and to meet the clients and the other lawyers also working on the case," he says.
Together with Michalowska, Matthews helped to take client statements in the field and met with doctors and other professionals to discuss the state of the claims.
"My interest in this area was sparked off by my company law lectures and the issue of corporate accountability," explains Matthews. "The work that Leigh Day does is very much an extension of that. We look at the actions of British companies across the world and check that the standards they're putting in place treat citizens who may not have access to lawyers in the same way they'd treat people over here."
Next the lawyers from Leigh Day went to meet some of the victims to see if they were aware of the possibility of taking legal action and the chances of success. As the answer from hundreds of victims was a resounding yes, Leigh Day solicitor Bozena Michalowska spent around six weeks in Bangladesh gathering information for the case.
"The last time we went," she recalls, "we spent around three days in the field taking statements from a selected section of claimants, obtaining medical samples and being updated by the doctors. It wasn't easy at all. The infrastructure there is poor so it's difficult to get about, and there's also the language barrier. But you always try to get as much done as you can."
Michalowska argues that if the BGS had identified the presence of arsenic during the 1992 survey, then the extent of people suffering today from arsenic-related diseases would be much less.
She adds: "[Testing for arsenic] is one of the constituents of the World Health Organization's guidelines. It wasn't something to have been left out of the tests. If they'd tested for it they would have found it."
Other critics have slammed the BGS for failing to apply the same stringent standards to their investigations in a developing country as they would to a similar water survey in the UK, for example. But in a strongly-worded official statement, the BGS, advised by Manches, has denied that it was negligent in not testing for arsenic back in 1992. According to the statement, "BGS is confident that it has no legal liability as regards the threatened litigation and it will vigorously defend any proceedings".
It adds: "Arsenic only occurs in a water-soluble form in certain hydro-geological conditions. It is one of a large number of trace elements which are therefore not routinely tested for in groundwaters unless there is independent evidence to suggest its presence. In 1992 such evidence did not exist in relation to Bangladesh."
One source expressed fears that if the mass party action is successful and all the claims go through, the total legal bill could devastate NERC, leaving the taxpayer to pick up the bill, while thousands of important research projects around the world would be put at risk.
Arsenicosis claims are worth an average of £15,000 in the UK and the lawyers pushing ahead with the joint action against the BGS think this is the least the victims deserve in light of the suffering they have endured.
"The network in Bangladesh and the law firms' main concern [is] to prevent the problem from spreading further and trying to prevent more people from being injured," adds the Blast spokesman. "Our objective is, of course, to gain significant awards of compensation for each of the individual claimants."
With new reports of growing anger towards Western aid agencies and experts for their part in the disaster, it is clear the story is far from over.
But Michalowska, for the time being, is focusing on the matter in hand. "It's an unusual case and I don't want to anticipate the outcome," she admits. "It provides different challenges in a very real sense. It's more adventurous than being a normal high street practising solicitor."