Radon for Estate Agents.

Introduction of the Property Misdescriptions Act 1991 is recognised as a milestone by the profession, and requires accurate property descriptions. It would be helpful therefore to be able to measure radon levels to the same accuracy as for room dimensions or size of paddock. The consultation process as to what will be prescribed matters has been lengthy. The easiest to include are obviously physical parameters that change slowly with time, if at all.

Unfortunately, radon levels are sometimes far from uniform. In one house, at one end in a kitchen, long term radon levels were a 'safe' 140 Bq/m³, yet in the sitting room barely ten metres away, they were 4000 Bq/m³. This is an extreme example.

To date about 10,000 houses have been notified to their owners (or tenants) to be above the action level of 200 Bq/m³, but only a few hundred have been remedied. Most of the 'affected' houses will have levels less than 400 Bq/m³, and action might be advised within a few years. Non-smokers especially may decide to do nothing if they intend moving house within a decade, since overall cancer risks might be reduced more by attention to diet than to the radon.

Eventually however, the house may be put on the market, and Agents instructed. What need the homeowner then divulge, even supposing that he remembers that the house was monitored for radon four or ten years ago?

Anyone who buys a house in an 'affected area' may not have heard of radon, especially if he (or she) is retiring to the countryside after a lifetime in a big city. Local purchasers, within Devon and Cornwall especially, could hardly fail to be aware of radon after nearly a decade of media attention. In Cornwall, the indigenous population have maintained a stoical disinterest, partly because of their disbelief in a gas detectable only in equipment made by foreigners (people from across the Tamar!) and partly because of the well known fact that Cornish rates of lung cancer are below the national average.

Explanations based upon lower rates of smoking in rural areas are often countered by stories of miners who spent a lifetime breathing radon, smoked sixty cigarettes a day and died of poverty at the age of 98. The view of many Cornish folk was well summed up in the Cornishman newspaper in 1990. Two old St Ives fisherman are quoted in conversation. Said one:

"It's they bloody foreigners comin' down 'ere with their cancers - and they got the cheek to give we locals the fault!"

Also, it may be claimed that local people must have become 'immune' to radon, having lived with it for so long. There are two errors here: high indoor radon levels have been a feature of houses only since the advent of doors and windows, and no mechanism of natural selection could be expected to operate for radon, whose victims usually die long after they bear children.

Many Agents dismiss radon, and while they are right not to exaggerate the issue, reforms of the conveyancing system, and more especially of the caveat emptor rule have been proposed. In the USA there has been implied warranty legislation for years in most States, and even implied duties on Agents to find out more about a possible problem if they had reasonable grounds for supposing that it might exist in any property.

Failure properly to advise a Client might render the Agent liable. The position in the USA is discussed in more detail below.

Liability for reporting radon levels in the UK would be contentious, if only because for many 'affected' houses results can be so variable.

Genuine assertions of a low and therefore 'safe' reading may be 'disproven' and perhaps by a factor of 3 or 4 or even 40 a year or so later, merely by picking a different room for the test.

Recent moves to streamline and speed conveyancing are not helpful for radon testing prior to contract because three months is recommended as the minimum monitoring period. Short term tests will occasionally show high levels, sufficient to confirm a problem, but a low result does not prove that the house is unaffected. Of even more concern, but affecting probably fewer houses, is the fact that entry potential testing (see Section 59) can give a false result in some situations. It may therefore be no better as a pre-sale test than using charcoal canisters (see Section 8), and with the disadvantage of being more expensive.

Some notes from the USA.

Coinciding with increased take up of routine testing by relocation companies (see Section 32), the rights and responsibilities of vendors and agents has been discussed. Liability for fraud may be established where either deliberate misrepresentation of radon levels or deliberate concealment of any known level is attempted. State legislation often provides a basis for liability in addition to that under common law, and indeed much radon case law is State specific.

Less serious might be either innocent misrepresentation, where the agent simply relays incorrect information supplied by the vendor, or negligence in checking whether the house was in a known high radon area. Civil liability could be established in most States in all these cases, but the discussion seems rarely to accept that radon measurement is an inexact science, especially in buildings where levels vary between wide limits owing to innocent influences.

The penchant for litigation in the USA is well known, and builders, estate agents and vendors have all been sued in respect of radon in homes. In several States there are established procedures for asking vendors about their past radon results, and standard agreements as to 'who pays what' in cases where the new owner detects more than an 'allowed' amount of radon after moving in.

Alternatively, contracts for sale and purchase can depend upon the result of a short term test - a procedure that amounts to a lottery in moderately affected houses. However, testing as a part of sale and purchase has proved of such benefit to the radon industry that discussion of matters such as detector accuracy

and the credibility of short term testing is discouraged.

Problems for Solicitors?

In future years, perhaps the problem most likely to tax Solicitors or Counsel will be proving personal injury when there has not been (nor statistically would there be expected to be) any manifest illness that could be ascribed to radon exposure. The problems here are that no-one can ever be sure of the cause of a radiation illness except when dose has been so massive as to induce what are termed early effects. (see Glossary).

Early effects killed many at Hiroshima and Nagasaki, and a few tens of brave, incautious or simply unlucky souls at Chernobyl. For these so called non-stochastic or acute effects, severity of illness is related to dose. Later cancers occur 5 to 50 or more years after exposure, and the probability of occurrence is (in simple terms) proportional to dose, but the severity of the cancer is not: either you get cancer or you do not.

Compensation merely for the risk of future illness would be probably a new concept, especially in respect of a naturally occurring substance such as radon, and when the exposure history was not known. Short of personal dosimetry for all those potentially exposed to air in high-level buildings, there would be

no way of knowing reliably the fraction of exposure that occurred in the subject building.

The closest examination of this point to date in the UK may be in the case at Sellafield in which a family claimed damages for contamination that, according to calculation, added very little risk. It was held that contamination even with artificially produced radionuclides, merely increased the risk of cancer (but by a small amount) and did not therefore per se amount to injury.

If the calculated risk was perhaps a thousand times greater - as could happen from a few years exposure in a high-radon house - a different view might have been formed. Indeed in the USA, Courts in at least one State have ruled that people can sue for having been exposed to danger, even though no injury has or may probably result. It seems unclear where all this may end, but the portents are that business for members of the legal profession may improve.

Outside of the radon field, compensation has been paid to workers exposed to small doses of ionising radiation and who have contracted cancer - but with no proof that the cancer resulted from other than chance.

Recently also, and in a case recognised as potentially opening the way for many others, an insurance company paid an out-of-court settlement of nearly £100,000 to a worker whose job had exposed him to wood preservatives for over ten years. The settlement was made not on the basis of any proof that his (rare type of) cancer had been caused by exposure to chemicals, but out of fear of the legal costs of an action and because the insurance company did not wish to lose in Court and so create case law unfavourable to its longer term interests.

The prospects for similar awards for lung cancer may be remote - if only because lung cancer is comparatively common even amongst non smokers and even outside of radon counties. It seems an unwelcome development if actions of companies and others become determined by fear of the cost of litigation rather than by the soundness of their case. As in radon as a whole, and in other 'environmental' issues, some common sense seems to be required.

Of importance also would be the position of any professional, or his insurers, who advised ten thousand people not to worry too much about moderate radon levels because the risks were small. The advice would be correct and properly in perspective with other health issues, but more than one in a thousand of those advised would be expected to develop lung cancer in ten or forty years' time even if they lived only with average radon levels of 50 Bq/m³, and even if all were non-smokers. If many lived for years with a few hundred Bq/m³ - which is no substantial cause for concern - and many were smokers, perhaps one in thirty could die of lung cancer caused by radon. Could over 300 sets of relatives then sue for damages? Probably so in the USA, and insurers providing Professional Indemnity cover are especially wary of business conducted in North America.

Such considerations have led to extreme safety precautions being taken because ANY departure from excellence and perfection (at whatever cost) could be grounds for an action. In North America building workers are sometimes told to wear protective masks when working in affected houses: a sensible idea in basements at 100,000 Bq/m³ but unnecessary within houses at a few thousand Bq/m³ only.

Independent scientists occasionally argue for rationality in expenditure, especially in respect of radiation. But if fear of the Law forces Local Councillors and Officials, and builders and surveyors (and Estate Agents and Solicitors) to err massively on the side of caution in radon, the resources that could be misdirected (read: wasted) could run to hundreds of millions of pounds, and billions of dollars.

Some indication of what may happen (at least in the USA) is provided by progress of the 'Superfund' program. This was created to deal with clean-up of toxic wastes dumped by industry, often around now derelict plants or beneath existing homes.

In essence Superfund is a federal scheme devoted to cleaning up the worst 1200 toxic waste dumps identified in the USA, and with another (estimated) 400,000 sites thought to merit attention. The annual expenditure is apparently $4200 million - to be added to the $6000 million spent annually by other government departments on clean-ups, and with billions of dollars being potentially required at nuclear installations.

There has been criticism for some years that too much effort has been devoted to testing liability in the Courts and too little to addressing the pollution. Environmental clean-up is clearly big business, but sometimes without any trace of harm to health.

Litigation may also play a leading role under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in the USA. There are similarities with the UK position on contaminated land - in that the owner of a site may be held responsible for the cost of clean-up even if he was not responsible for the pollution. However, CERCLA appears to go further, in that damages may be claimed (so it has been reported) for actual property damage, diminution in the value of property, bodily injury and medical costs. In addition, and with reference to the Sellafield case cited above, damages may be claimed for future medical costs and emotional distress - and they may be punitive. The scope therefore exists for damages in respect of a host of perceived injuries, even if they have not occurred and may not (statistically) be expected to occur.

Not surprisingly, insurance companies in the USA have been unwilling to underwrite cover for pollution: CERCLA is retroactive and not subject to any statute of limitations. If radon becomes a major issue of indoor pollution (as many would wish) it seems likely that massive amounts of remedial work may be undertaken in buildings not to protect workers from any significant hazard but to protect the company from any possible law suits. It is interesting to speculate on how low the post-mitigation level would have to be before the company could feel safe. Could 2 pCi/l (75 Bq/m³) discovered in an office be a cause of severe emotional distress? Certainly the calculated risks from even this amount of radon are greater than those from computer screens - many of which may soon be replaced to meet tough new Standards for radiation emission.

It may yet transpire that radon levels in buildings in the USA have to be reduced to as low as those in the outdoor air, thus meeting the long term goal set by Congress. Even then however, in many States, the risks may be the largest from any pollutant in the indoor environment.

In the meantime, health budgets are under severe strain, and thousands die of cold (and sometimes of influenza) each time there is a severe winter. This is especially true in the UK. Sections 22 to 26 provide further perspective, with 22 addressing classification of issues, from which may be derived rational limits for expenditure and concern.

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