MAST ACTION UK - LEGAL SERVICES

C/O Devon House 12/15 Dartmouth Street

Queen Anne's Gate London SW1H 9BL

Tel: 020 7222 8844 Fax: 020 7222 4123 Email: ameyer@hlf.uk.com

MOBILE PHONE MASTS - PROPERTY OWNERS

PUBLIC LIABILITY INSURANCE COVER

1. In 2004 Mast Action UK became concerned on behalf of its many group members that possibly the indemnity offered by network operators to property owners for having masts on their property might prove not be sufficient to cover the actual risk, and to meet claims particularly where the Mast was surrounded by dense Residential Housing.

2. Shortly after coming to that conclusion, the Court of Appeal in the case of Bottomley v Todmorden Cricket Club and Others (13 November 2003) found and suggested that if you bring a foreseeable dangerous activity onto your land, such as a firework display, the property owner could be liable if an accident occurred and those who brought the display on to the property were not adequately covered by insurance. - The Times Law Report is headed "Occupiers Insurance Duty" but made it clear that the final duty of care rested with the Property Owner.

3. As a consequence MAUK instructed Counsel to settle an appropriate Notice Letter to Land and Property Owners warning them of such a possible risk and advising them to check that their own Public Liability Insurance would cover such a risk brought onto the Property.

4. However having been provided with a copy of one of the Network Operators mobile phone mast agreements, which contains its usual indemnity clause - it had been believed that Network Operators usually offered an indemnity up to £10 million - and that the danger was that, in a conurbation in particular, if there turned out to be adverse health effects £10 million would not go very far. However, this Network Operators indemnity was not only limited "up to £1 million" but it was also qualified as "arising out of any negligence of the company".

5. However, the danger which may arise, if it turns out that Mast emissions are scientifically or medically adverse to health, and accordingly "a foreseeable dangerous substance", it has nothing to do with proof of negligence, it is Rylands v Fletcher 1866, as recently confirmed by the House of Lords in Transco v Stockport Metropolitan Borough Council on 20 November 2003, as being a Rule which still subsists, and is one of strict liability without the need to prove fault.

6. The problem is that the Indemnity offered by some Network Operators might well prove to be worthless. The issue may be that the Land or Property Owner will believe that the Network Operators Indemnity Clause will cover all possible legal risks, when perhaps that is not true. Equally however many Network Operators agreements may not be expressed as being "arising out of any negligence of the Company".

7. Obviously this is only likely to arise if and when medical or scientific evidence shows that adverse health effects can arise from Mast emissions. This has become since the Court of Appeal Bottomley Decision a more foreseeable possibility following the announcement of the Dutch Government's independently funded 3G/U.M.T.S health effects findings issued on 30 September 2003, and also a number of more recently published scientific studies concerning health effects i.e. Naila - Wolf - Kundi et al, and others.

8. Enquiries through the Mobile Operators Association to clarify the meaning of some of these Network Operators Indemnity clauses having failed to produce any outcome, it is recommended that Land and Property Owners should be sent the Notice letter once a Mast proposal becomes known, preferably before Prior Approval or Planning Permission is granted.

AAM

11.10.2005

NB This note only sets out the present 'possible' legal position. It is one which is however becoming a more realistic possibility which from an Insurance angle should not be ignored completely.