Claimants appearing on the Register of the Corby Group of Litigation v Corby Borough Council [2008] EWCA 463
The facts: Between 1983 and 1989, D acquired approximately 680 acres of heavily contaminated land in Corby from the British Steel Corporation with a view to reclamation and redevelopment. The 18 claimants (C) were all born between 1986 and 1999 with deformities. C contended that their mothers, who lived nearby, were exposed during the embryonic stage of their pregnancies to toxic materials that were disturbed during the course of the D's reclamation and decontamination programme, thus causing the deformities.
C issued proceedings in negligence. C later sought to amend the proceedings to include a claim in public nuisance. D sought to strike out the public nuisance claim on the grounds that it was an abuse of process, arguing that damages for personal injury cannot be recovered in public nuisance. D appealed against a first instance refusal of their application.
Whilst D conceded that damages for injury were often awarded in public nuisance in the lower courts, D argued that those decisions were wrong. D relied on two House of Lords rulings (Hunter v Canary Wharf Ltd [1997] and Transco v Stockport MBC [2003] and a paper by Professor Newark titled "The Boundaries of Nuisance" (1949) which defined / confined public nuisance in terms of 'a tort to the enjoyment of rights in the land' and which advocated that personal injury damages should only be awarded in a claim in negligence.
The decision: D's appeal was dismissed. In neither House of Lords ruling were damages for personal injury expressly excluded, furthermore there were other authorities of equal weight, such as Rimmington and R v Goldstein [2005] that suggested that the right to claim damages in public nuisance was not necessarily restricted to those exercising rights over an adjoining property.
Comment: Lord Dyson's judgment, which was agreed unanimously, included the following statement of principle:
The purpose of the law which makes it a crime and a tort to do an unlawful act which endangers the life, safety or health of the public is surely to protect the public against the consequences of acts or omissions which do endanger their lives, safety or health. One obvious consequence of such an act or omission is personal injury. The purpose of this law is not to protect the property interests of the public.
Yet the judgment left the door open for the House of Lords to rule on whether personal injury damages can be claimed in these circumstances. At present, there is no authority to the contrary.
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