Is This an Established Stance?

In light of these considerations, it is now possible to examine and contextualize the reasoning of the Appeal Court of Turin.

Some key passages and the legal arguments implemented lead one to assume that the Court has confirmed the few decisions previously handed down on this subject in the field of labour law, which have been commented on in specialized journals. As we are dealing with ‘non-listed’ occupational diseases (⁶), the starting point should be the insights from medical research and the scientific debate, which have divergent views on the impact that cell phones might have on human health (⁷). There are many studies on radiofrequencies that rule out the causal link between the use of cell phones and the insurgence of brain tu-mours. While developed in a scientific context, these analyses

(⁶) As far as occupational diseases are concerned, some ‘listed diseases’ exist in Italy, which feature a legal presumption about their work-related nature, i.e. they are caused by working conditions or activities. As for ‘non-listed pa-thologies’, it is up to the worker to demonstrate the existence of the disease, the characteristics of the work carried out that caused it and the causal nex-us between the disease and the task. See S. GIUBBONI, G.LUDOVICO, A.

ROSSI, Infortuni sul lavoro e malattie professionali, Cedam, 2014, chap. III, § 10, and also M.C^ERBONE, Il giudice e l’Inail nell’applicazione delle norme sulle malattie professionali, Working Paper Olympus, 2014, No. 34.

(⁷) With regards to labour law research, an overview of the current debate can be found in F.GOBBA, A.MODENESE, G.ZANOTTI, Effetti dei campi elet-tromagnetici nei lavoratori professionalmente esposti: le evidenze scientifiche, le decisioni della magistratura, in S. GOLDONI ET AL. (eds.),DBA Incontri 2017. Radiazioni ionizzanti e non ionizzanti: valutazione e protezione alla luce della nuova normativa eu-ropea, Azienda USL di Modena, 2017, pp. 140-141 (available open access in sa-lus.adapt.it).

are not considered reliable by the Court, due to the conflict of interest allegedly faced by their authors (i.e. they might act as consultants for operators or companies in the sector) or the pri-vate nature of research funds, at times provided by telephone companies. As signalled by the Appeal Court of Turin: “[it is ev-ident that] independent experts’ investigation and conclusions are more reliable than those commissioned and supported by bodies which might have an interest in the research findings […]

Moreover, it was following a dispute filed against INAIL relating to an occupational disease (i.e. intracranial tumour) resulting from exposure to radiofrequencies emitted by cell phones, that the Court of Last Resort highlighted that ‘the higher reliability of these studies – which are independent because they are not co-financed – further back the conclusions accepted’ (see Court of Last Resort 2012.10.12 n. 17438)” (⁸). Yet the absence of abso-lute certainty in medical research on the dangers of cell phones for people’s health does not affect the legal reasoning on em-ployee protection, since the Court does not consider the exist-ence of a scientific law. In order to make a proper legal assess-ment concerning work-related risks and damage, suspicions and doubts are taken into consideration which might pave the way for further scenarios (⁹). This way, and in line with the precau-tionary principle (see § 4), the Court can formulate an overall as-sessment concerning the possible harmfulness of the electro-magnetic waves emitted by cell phones and by other devices (see

§ 3). Some experiments carried out on animals and independent

(⁸) While falling outside our scientific knowledge, the following work is use-ful to understand how relevant research independence and neutrality are when it comes to the effects of the electromagnetic fields on people’s health: A.G.L^{EVIS ET AL}., Telefoni mobili e tumori alla testa: la sentenza della Cor-te d’Appello di Brescia – Sezione Lavoro – alla luce delle attuali conoscenze scientifiche e della legislazione in materia, cit., p. 313, as well as the reply by Susanna Lagorio and Paolo Vecchia.

(⁹) See A. VISCOMI, Amianto: precauzione, prevenzione e responsabilità, in L.

M^ONTUSCHI, G.I^NSOLERA (eds.), Il rischio amianto. Questioni sulla responsabilità civile e penale, Bononia University Press, 2006, p. 54.

studies – without alternative risk factors and considering certain circumstances related to age and type of exposure – seem to confirm a sufficient degree of certainty when identifying the causal link (¹⁰) which is used to assess the legal consequences of this state of affairs (e.g. social security benefits that result, follow-ing the outset of an occupational disease). The Court usually re-fers to this situation as a ‘relative risk’ – i.e. an increase in the risk factor determined by the exposure to the allegedly patho-genic element – using the expression “more likely than not” (¹¹).

When dealing with the causal link in cases of co-causality and multi-factorial events – which represents today’s situation also because of the spread of degenerative and neoplastic diseases re-sulting from ever-present risk factors (¹²) – legal causality and the probative dimension are interconnected. In this way, “they appear to arise from the same cause, namely an investigation method which is used for specific cases where a logical reason-ing cannot be applied” (¹³). Therefore, it is possible to consider the causal link on the basis of surveys documented by epidemio-logical studies related to the effects of exposure to electromag-netic fields produced by cell phones. This should be done by

(¹⁰) See Court of Last Resort No. 17438/2012, cit., and other previous deci-sions on the same issue. In the literature, cf. L.R^OMEO, Nesso di causalità nelle malattie multifattoriali, in RIMP, 2016, No. 2, I, p. 322.

(¹¹) Cf. Court of Last Resort 27 April 2004, No. 2073, in RGL, 2005, No. 1, II, and the comment by G.SACCONI, La prova del nesso di causalità nelle malattie multifattoriali: l’importanza del criterio epidemiologico. For the evolution of the no-tion of causality with special reference to the link between individual and general causality, cf. A. FIORI, La causalità nelle malattie professionali, in INAIL, VI Convegno nazionale di medicina legale previdenziale. Atti, 2006, Vol. I, pp. 36 and 42-50, where reference is made to the assessment based on the induc-tive method and other criteria. Cf. also C.S^FERRA, Confronto tra malattia profes-sionale non tabellata e malattia comune, in RIMP, 2010, No. 2, I, pp. 479-483, and G. M^ANCA, Assalti e difese ai bastioni della causalità scientifica nei contributi più re-centi di dottrina e giurisprudenza, in RCP, 2013, No. 2.

(¹²) See A. DE MATTEIS, La prova della malattia multifattoriale. L’equivoco conti-nua, in RIMP, 2014, No. 3, I, p. 583.

(¹³) See A.VARVARESSOS, op. cit., p. 1559.

taking into account the peculiarity of each case (¹⁴), even though medical science has not defined and shared the existence of a scientific law (¹⁵). The Appeal Court of Turin, which based its decision on the case law of the Court of Last Resort (cf., ex mul-tis, Ruling 10 April 2018, No. 8773) found that “when dealing with a ‘non-listed’ occupational disease which might arise from different factors, the work-related dimension of such disease must be proven by the worker. This can be done in terms of reasonable certainty. In other words, after ruling out the mere possibility of its work-related origins, this dimension can be es-tablished if a high degree of probability exists”. This is based on the findings supplied by the worker and the consultants ap-pointed by the Court (cf. Court of Last Resort No. 17438/2012, cit., and Court of Florence No. 391/2017, cit.), also in consider-ation of the duties performed by workers, the disease type and degree of exposure. As clarified by the Court of Last Resort (Ruling 24 November 2015, No. 23951), “in the event of a dis-ease featuring multifactorial aetiology – e.g. cancer – the causal link between the disease and work cannot be simply presumed considering theoretically-sound hypotheses, but it must be demonstrated. This can also be done taking into account its

‘qualified probability’, which needs to be assessed considering additional aspects through which technical consultants’ assump-tions might be turned into legal certainties”. Barring the possibil-ity of the work-related nature of the disease (Court of Last Re-sort 10 February 2011, No. 3227), this can be done when certain elements do not justify, in terms of probability, an exclusion of the causal link between exposure to electromagnetic fields and

(¹⁴) Idem, p. 1560.

(¹⁵) See Court of Last Resort No. 9893/2000; Court of Modena No.

1430/2004; Court of Venice No. 441/2008; Court of Last Resort, Criminal Division, No. 33285/2008; Appeal Court of Milan No. 2168/2009; Court of Last Resort No. 23676/2009; Court of Last Resort, Plenary Session, No.

581/2008; Court of Last Resort No. 15991/2011; Court of Last Resort No.

3227/2011.

the onset of disease. Some degree of ‘reasonable certainty’ is suf-ficient to establish legal causality, granting workers disability benefits (see Court of Last Resort No. 17438/2012, cit.). On this point, “it is not about comparing the results of a study on a sample of clinical cases related to the pathology at hand. Rather, it is about considering valid – even with respect to further stud-ies – those with evaluative variables, which are relevant and al-low a logical demonstration on the basis of a simple comparison with the risk index used in the field” (¹⁶). In consideration of the views of the Court of Florence (Ruling No. 391/2017, cit.), it should also be highlighted that “the phone which is used for personal reasons – while not being the exclusive cause of the disease – would not rule out the causal link with work. This is so because case law applies the provisions contained in art. 41 of the Penal Code, according to which all events contributing to the disease are taken into account, unless this link is affected by a more relevant factor that gives rise to the disease in its own right” (see Court of Last Resort 19 June 2014, No. 13954, and Court of Last Resort 9 September 2005, No. 17959, which are also referred to by the Court of Florence).

3. A Framework Featuring Major Shortcomings and