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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions