UK: The British ´Erin Brockovich´

Last Updated: 10 September 2009
Article by Aidan Thomson

A "toxic tort" action is a special type of personal injury claim in which the claimant alleges that exposure to a toxic substance has led to some form of harm or disease.

From time to time, toxic tort actions allege exposure of large numbers of individuals to a chemical that has been introduced by the defendant into the environment. When these multi-party environmental toxic tort actions happen in real life, they invariably attract their fair share of headlines. The storylines of a number of Hollywood blockbuster films ("A Civil Action" and "Erin Brockovich", to name a couple) have been based on them.

In the UK at least, it is extremely rare for environmental toxic tort actions to make it to trial, and rarer still for the claimants actually to win. Evidentially, claimants often have a mountain to climb, and the cost of putting a case together (if it is possible at all) is usually prohibitive.

However, when claimants can make out a half decent case, defendants can be presented with quite a headache. The media usually instinctively sympathises with the claimants, regardless of the evidence. Settling is tricky due to the likelihood of adverse PR and the possibility of further copycat actions by other members of the public. Fighting the case often turns out to be the best option, even though marshalling the evidence required to counter the claimants' case is also prohibitively expensive and the chance of recovering costs if the defence is successful is not great.

Corby Group Litigation v Corby District Council

On 29 July 2009, judgment was given in Corby Group Litigation v Corby District Council.

The case bears all the hallmarks of classic fight-to-the-death environmental toxic tort litigation. Eighteen claimants and/or their parents gave evidence along with 20 other factual witnesses plus a host of scientific experts. The trial lasted for 38 days. The media watched and waited with interest. Neither side backed down. The Council alone incurred legal costs of £1.9m in defending the case.

The claimants were young people and children born between 1986 and 1999 with birth defects, mostly to the hands and feet. All of their mothers had either lived in, or regularly visited, Corby during the period from 1983 to 1997 when Corby Borough Council (CBC) was undertaking demolition, excavation and redevelopment works in connection with the former Corby steelworks site. When in operation, the steelworks site extended to 680 acres and, unsurprisingly, had become home to some significant waste, pollution and contamination issues.

The claimants alleged that, as a result of negligence, breach of statutory duty (namely the Council's waste-related duties contained in the Environmental Protection Act 1990) and public nuisance on the part of the Council, their mothers were exposed during the embryonic stage of their pregnancies to toxic materials emanating from the Council's steelworks programme and that this exposure caused their birth defects.

The trial

Vast amounts of time were spent examining the following key areas in minute detail:

  • Whether there was a statistically significant cluster of birth defects in Corby that suggested a causal factor might be at play;
  • Whether toxicologically there were present on the sites the sorts of contaminant that could lead to the sorts of birth defect suffered by the claimants;
  • What the Council's demolition, excavation and redevelopment activities consisted of;
  • Whether the activities could have resulted in the mothers being exposed to the contaminants;
  • Whether, in conducting its activities, the Council had behaved reasonably; and
  • Whether it was reasonably foreseeable that harm might be caused to embryos or foetuses being carried by mothers as a result of these activities.

The judgment

In a 919 paragraph judgment, the judge held the Council liable in public nuisance, negligence and breach of statutory duty. In so doing, he made the following findings:

  • There was a statistically significant cluster of birth defects to the children of mothers living in Corby during much of the relevant period. A cluster like this would not normally arise by chance.
  • Toxicologically, there were present on and from the CBC sites over the whole period from 1985 (and possibly before) until 1997 the types of contaminant which could cause the birth defects complained of by the claimants.
  • There was an extended period between 1983 and 1997 in which the Council's activities at the sites were conducted in such a way that they fell below the proper standard.
  • The activities led to the extensive dispersal of contaminated mud and dust over public areas of Corby and into and over private homes with the result that the contaminants could realistically have caused the types of birth defect of which complaint has been made by the claimants (save in limited respects).

Despite the very clear judgment in the claimants' favour, the claimants are not yet entitled to an award of damages. All that the court has decided so far in this group litigation are the issues that are common to each of the claimants' claims. Each individual claimant now needs to show that his/her particular condition was actually caused by the Council's shortcomings that have now been identified. There is still work to do, but the judgment will assist the claimants considerably, although you may have heard in the news that the Council is seeking to pursue an appeal.

The lessons

The case demonstrates that it is not just large companies that can get pulled into environmental toxic tort litigation. Local authorities are at risk too as a result of, for example, waste management or reclamation activities that they have carried out in the past.

On the one hand, it is important for local authorities not to overreact to a judgment like this. Big environmental toxic tort cases rarely get off the ground due to the complexity and cost of the technical evidence required to establish, for example, breach of duty and causation. Insurance may well cover some types of claim (but watch out for pollution exclusions). As a general rule, if the Council has behaved in line with the prevailing standards at the time, or has selected independent contractors with reasonable care and skill and supervises them appropriately, it will be difficult to make a claim stick.

On the other hand, however, it would pay to be vigilant. Falling short of appropriate standards is easy to do. As the judge recognised, it is not necessary for there to have been a "systemic" breakdown within the defendant. He said that the Council had got into this position by simply "biting off more than it could chew" on an unfamiliar project. With some commentators predicting an increase in the number of environmental toxic tort cases in the UK, and the financial, management and PR downside being so high, it is more important than ever for Councils to make sure that any activities that they undertake that might have an environmental aspect or impact are managed "by the book".

Some claimants' lawyers are highly specialised in the practice of bringing environmental toxic tort actions. Any Council with the misfortune of being on the receiving end of such an action needs to ensure that it instructs lawyers that are similarly well versed in this highly specialised area.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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