What had the students been exposed to?
In order to substantiate the causal relationship, it was important to know if the students had been exposed to carcinogenic agents in the working environment in the 1970s and 1980s, and in what concentrations. Specific laboratories were the main focus of suspicion. The judgment reproduces an excerpt of a letter from students and employees to the safety representative in June 1978, where they described the working conditions at these laboratories as intolerable (2) A workplace inspection six months later reported improper storage of chemicals, that there was no toxic substances storage cabinet and that the fume cupboards were defective. There was little other information about the working conditions.
The judgment quoted the report from a group of experts appointed in the Rosenborg case (the Dybing Commission). "There are grounds to believe that the Rosenborg laboratories used a dozen carcinogenic substances. However, so much time has passed that it is not possible to be more accurate regarding the exposure in terms of concentrations and duration" (2).
The judgment repeats the criticism levelled at NTNU by the Ersdal Commission regarding inadequate investigation after it learned of the cases of cancer: "NTNU's inadequate investigation of the exposure situation and level at the Rosenborg laboratories has resulted in us, ten years after legal action was brought in the Rosenborg case, not knowing more about what impact the working environment may have had on the students and the employees. NTNU's failing in this area has also reduced the chances of establishing the truth, as the laboratories have now been demolished" (2)
The solvent benzene was the possible cause of cancer that received the most attention during the hearings. A professor and former laboratory head (P) at the Rosenborg laboratories was quoted as follows: "It was not common knowledge in the 1970s that benzene was a hazardous substance, and P could not say that work was always done in a ventilated area" (2) If P's recollection is correct, this ignorance is shocking. In the 1970s, benzene had been known as a bone marrow toxin for almost one hundred years. The following was written in bold text in the 1975 edition of a textbook on occupational medicine: "Where no substitute can be found, benzene should be used only under the best conditions, and its characteristic odour in a workshop should be regarded as a danger signal. In other words, the safe concentration of benzene in a factory or workshop is ZERO parts per million" (3). A Norwegian handbook for workers dated the same year warns of the risk of damage to bone marrow and leukaemia, and particularly warns against skin contact, because benzene is absorbed through the skin (4).
The fact that the university had not clarified the risk in the working environment and its lack of knowledge about benzene should be key factors in a case regarding tortious liability like this one. The Norwegian Institute of Technology/NTNU was the country's most important educational institution for chemical engineers and future industrial managers, and had the resources to be familiar with the legislation on protection of workers and to comply with it. The Court of Appeal does not appear to have given any weight to the fact that employers were under an obligation pursuant to the Working Environment Act of the 1970s and 1980s, just as they are today, to monitor employees' exposure to chemical and other risks to health.
Formaldehyde was another possible cause of cancer. The Court of Appeal concluded that there was no "preponderance of the evidence" that exposure to formaldehyde provided an increased risk of the type of cancer in question (chronic myelogenous leukaemia). However, it also stated that the expert witnesses had not shed much light on the matter (2) The Court of Appeal was of the opinion that the survivors had to shoulder the risk for the lack of illumination of the matter. They had not concretised the question of formaldehyde until during the appeal, in other words not in the court of first instance. Assigning responsibility in this way may be legally correct, but to the layman it seems unreasonable that it is the survivors who must identify the causes of cancer, when it is the lack of knowledge on the part of the employer that makes this necessary and also very difficult.
If the expert witnesses had been allowed to give evidence about formaldehyde, they might have been able to testify that the International Agency for Research on Cancer (IARC) has concluded that exposure leads to an increased risk of leukaemia, especially myelogenous leukaemia (5, 6).