UK: Environmental Toxic Tort Actions Lurk In The UK

Last Updated: 10 December 2009
Article by Aidan Thomson

Whilst they still have some distance to go, claimants in an Erin Brockovich-style multi party toxic tort action based on remediation activities in Corby have overcome an important hurdle in their fight for compensation.

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.

Some toxic tort actions allege exposure of groups of individuals to a substance that has supposedly been introduced into the general environment by the defendant's actions. When environmental toxic tort actions like these happen in real life, the media usually follows them closely.

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 to actually win. Evidentially, claimants have a tough job, and the cost of putting a case together (if it is possible at all) is usually prohibitive. 

When claimants can put together a credible case, however, defendants can find themselves in a very difficult position. It is often difficult to shift media attention away from the emotional or perceived moral aspects of the case onto the more legally relevant ones. Settling is tricky due to the likelihood of adverse PR and the possibility of further copycat actions by additional claimants. Fighting the case often turns out to be the most attractive option for defendants, even though gathering the evidence to counter the claimants' case is costly and the chance of recovering in respect of all costs and upheaval at the end of the day - even if the defence is successful - is not great. 

Corby Group Litigation v Corby District Council

On 29 July 2009, a key judgment was given in Corby Group Litigation v Corby District Council. The case bears many of the hallmarks of "classic" environmental toxic tort litigation.

The claimants under the Group Litigation Order were 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 was undertaking demolition, excavation and redevelopment works in connection with the extensively contaminated former Corby steelworks site.

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 their pregnancies to toxic materials emanating from the Council's steelworks programme and that this exposure caused their birth defects.

The Trial

The trial in the case, during which specific issues that were generic and common to all of the claimants were examined, lasted for 38 days. Eighteen claimants and/or their parents gave evidence along with 20 other factual witnesses, plus a host of scientific experts. The media watched and waited with interest.

Vast amounts of time were spent examining key issues in minute detail, including:  what sorts of substances were present on the site; what the Council's activities consisted of; whether a duty was owed by the Council to the claimants; whether the activities had been conducted to the proper standard; whether/how failure to adhere to the proper standard could have caused the types of birth defect complained of; and whether the harm in question was foreseeable.

The Judgment

In a lengthy 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 could not be explained by chance alone.
  • Toxicologically, there were present on and migrating from the site 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). 
  • In respect of children conceived after August 1997, it could not be demonstrated that their birth defects could be caused by any breaches of duty or public nuisance occurring before that time; and there were no significant emissions of the relevant contaminants after that time which could have caused the birth defects.

The claimants are not yet entitled to an award of damages. Indeed, there is still a long way to go. Each of the claimants supported by the judgment on generic group issues now needs to show that his/her particular condition was actually caused by the Council's identified shortcomings. Even before they can do this, they will have to deal with the appeal of the judgment on generic group issues which the Council has now sought.

To get to this stage, the Council is reported to have incurred defence costs of £1.9m. In addition, it must now make an interim payment of £1.6m in respect of the claimants' costs, which is rather less than the claimants asked for (they are reported to have asked for an interim payment of over £3m against their total costs of over £4m) but is nevertheless very significant. 

The Lessons

On the one hand, public and private organisations should not overreact to this judgment. The judge stressed that the Corby project was a "one off" in many ways. Big environmental toxic tort cases rarely get off the ground due to the complexity and cost of the technical evidence required. As a general rule, if the organisation has behaved in line with the prevailing standards at the time, or has selected and supervised independent contractors with reasonable care and skill, it will be difficult to make a claim stick.

On the other hand, however, it would pay for organisations to be vigilant: 

  • Falling short of appropriate standards is easier to do than one might think and does not require a systemic breakdown. The judge said that the Council had sowed the seeds of liability by simply "biting off more than it could chew" on an unfamiliar project rather than having a systemic breakdown. 
  • As the case demonstrates, liability in environmental toxic tort cases (which can stem from the actions of a long-replaced management team or the acquisition of a company with a hidden polluting past) can lay dormant or undetected for decades and catch an organisation off guard (and divert its resources significantly) when it surfaces. 
  • Without access to adequate insurance (public liability cover will not always respond to these claims), financial and other resources, these claims can easily bring an organisation down.     

With some commentators predicting an increase in the number of environmental toxic tort cases in the UK (due to the emergence of more sophisticated claimants' lawyers and a friendlier costs environment), and the financial, management and PR downside being so high (even if the claim fails), potentially vulnerable organisations are advised to take steps to ensure that they have suitable cover in place should a claim arise and that any future activities that might have an environmental impact are managed "by the book". 

This article first appeared in Insurance Day on 11 September 2009 and is reproduced with the kind permission of Informa.

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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