ENVIRONMENTAL CLAIMS AND PERSONAL INJURY AN OVERVIEW

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1 ENVIRONMENTAL CLAIMS AND PERSONAL INJURY AN OVERVIEW CHARLES PUGH AND BETSAN CRIDDLE OLD SQUARE CHAMBERS, LONDON The purpose of this article is to focus on some of the particular issues which fall to be considered by practitioners litigating personal injury claims in an environmental context. CAUSE OF ACTION The traditional form of pleading in an environmental claim was to plead nuisance, Rylands v Fletcher and negligence. This form of pleading must now be limited to those cases in which actual physical damage has been caused. A personal injury claim can only be litigated in negligence. The decision of the House of Lords in Transco plc v- Stockport Borough Council 1 makes it clear that damages for personal injury cannot be obtained in either nuisance or Rylands v Fletcher. As says Lord Bingham of Cornhill 2 The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort based on the interference by one occupier of land with the right in or enjoyment of land by another occupier of land as such. From this simple proposition two consequences at once flow. First, as very clearly decided by the House in Read v J Lyons & Co Ltd [1947] AC 156, no claim in nuisance or under the rule can arise if the events complained of take place wholly on the land of a single occupier. There must, in other words, be an escape from one tenement to another. Second, the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land. 1 [2003] 3 WLR See para 9 of the judgment 1

2 The corollary of this is that the interference with interest in land of which complaint is made in a nuisance claim will not found a claim in negligence. Thus, there can be no cause of action in negligence for distress, annoyance, inconvenience and physical symptoms short of personal injury 3. This will give rise to case management decisions where more than one cause of action presents itself. A claimant may have an interest in land and wants to seek an interim injunction to prevent his neighbour from discharging chemicals onto his land. At the same time, those chemicals may have caused him to suffer personal injury e.g. asthma from the inhalation of fumes. It may be appropriate to bring all claims forward in one claim where, as in this example, all the damage complained of arises from a single factual matrix, but certain claims (such as seeking an interim injunction) may require determination before others. A further head of claim which has been advanced in recent years is a claim under the Human Rights Act ( HRA ) The Convention rights which most commonly arise in an environmental context are those under Article 8 (the right to respect for private and family life) and Article 1 of the First Protocol (the entitlement to peaceful possession of possessions). The European Court of Human Rights has held the failure of a local authority to prevent severe environmental pollution to be a breach of Art 8 Lopez-Ostra v Spain 4. However, the recent decision of the House of Lords in Marcic v Thames Water Utilities Limited 5 may limit such challenges in future. The claim in Marcic was brought in nuisance and under the provisions of the HRA set out above in respect of the failure of the statutory undertaker, Thames Water, over a number of years to take action to improve the sewer capacity in the claimant s area, such that his property continued over that period of time to be repeatedly flooded by water and sewage. Under the relevant legislation, the responsibility for requiring Thames Water to take such action lay with the 3 Hicks v Chief Constable of West Yorkshire [1992] 2 All ER 65 4 (1991) 20 EHRR [2003] 3 WLR

3 Director General for Water Services by means of serving an enforcement notice requiring such works to be done 6. If not complied with, an enforcement notice would then become actionable by the claimant, provided that he could show loss or damage to himself by virtue of contravention of the order 7. The claimant had not complained to the Director General and no steps had been taken under the statutory provisions. The claim at first instance failed in nuisance but succeeded on the human rights point. The Court of Appeal found in favour of the claimant on both claims. The House of Lords allowed the appeal against that decision. It held that the claimant s remedy lay in seeking to persuade the Director General to take appropriate action, with the option of bringing a judicial review challenge if there was a failure to act. In rejecting the human rights claim, their Lordships referred to the recent decision of the European Court of Human Rights in Hatton v UK 8 which emphasised the special weight to be given to the role of domestic policy, which policy has to strike a balance between the interests of the individual and of the community as a whole. Lord Nicholls remarked 9 that the malfunctioning of the statutory scheme on this occasion does not cast doubt on its overall fairness as a scheme. Clearly, the failure of Mr Marcic to take any steps under the statutory scheme was of considerable importance on these facts. There must be some doubt however about the efficacy of the available remedies had the Director General refused to act. Judicial review proceedings are expensive challenges to mount and it would have to be shown that the Director was acting outside the broad discretion afforded to him to determine matters of policy. More generally, the decision must sound a note of caution as to the readiness with which the courts will allow human rights challenges to succeed in future Water Industry Act, s.18 7 s.22 8 Unreported, 8 July Para 43 of the judgment 10 Note also the Marcic decision in the context of establishing liability as against a public authority for omissions, a notoriously difficult exercise. 3

4 DUTY OF CARE The owner/occupier of land has a duty of care to his neighbour: if he creates negligently a dangerous state of affairs on his own land which will foreseeably harm his neighbour s land and it does so, he will be liable in negligence for his action. It is well-known that there is generally speaking no liability for omissions to act. In East Suffolk v Rivers Catchment Board v Kemp 11, it was held that the Board had no liability for the negligent repair of a sea wall which it had no duty to repair when the Claimant s land was flooded by sea water. The neglect inflicted no more damage than would have a total omission to act, and therefore had not caused the damage complained of. There is on the other hand a common law duty to take positive action to remove or reduce hazards to neighbours even if that hazard is one which comes about naturally. Thus, there is an obligation to prevent fire from spreading when a tree on land is struck by lightning 12, to prevent soil subsidence collapsing onto neighbouring houses 13, to prevent loss of support due to landslips 14 or to prevent the incursion of tree roots onto a neighbour s land 15. Different considerations arise if that neighbour is a public authority. In Marcic, the claimant sought to overturn a line of authority to the effect that his remedy for failure to provide better sewerage facilities lay under the statutory scheme by relying on the cases set out above. He argued that Thames Water was his neighbour and owed him a positive duty to take action by reason of its occupation of the sewerage system. This was rejected, it being said that these were cases which should be confined to consideration of disputes between individuals. The courts could not in the same way determine disputes between an individual on the one hand and a statutory undertaking providing public utilities on a large scale on the other. 11 [1941] AC Goldman v Hargrave [1967] 1 AC Leakey v National Trust [1980] QB Holbeck Hall Hotel Limited v Scarborough BC [2000] QB Delaware Mansions Limited v Westminster CC [2002] 1 AC 321 4

5 That duty to act is to take reasonable steps. The duty is different to the standard imposed by the duty of care in negligence. Unlike that duty, it is permissible to take into account the individual circumstances of the owner/occupier; he need only do that which can reasonably be expected of him in his circumstances. An owner/occupier of limited means is not required to do as much as a larger owner/occupier with more resources at his disposal 16. In negligence, there has recently been a bold attempt to extend the ambit of the duty of care in an environmental context in Sutradhar v Natural Environment Research Council 17 (the Bangladesh water case). A department of the Defendant had analysed ground water samples in Bangladesh and compiled a research report on the hydrochemistry of the main aquifers. An ancillary purpose of the report was to provide information relevant to the potability of that water. The report was written for the UK Overseas Development Agency, although it was recognised that it would be made available to the Bangladeshi authorities. It was common ground that there had been no analysis of the samples by the defendant for arsenic and that the Bangladeshi government lacked the facilities to have carried out such analysis. It was argued that, having regard to the way in which the report would be circulated to and relied upon by the authorities, the defendant owed a duty of care to the claimant, a Bangladeshi citizen, to test for arsenic or at least make it clear to the authorities that they had not done such testing. It was said that the failure to do so was a breach of duty such as to impose liability on the defendant for the serious health problems which the claimant said he had been caused by drinking water contaminated with arsenic. There were another 699 potential claimants in a similar situation to the claimant waiting in the wings. At first instance an application to strike out the claim on the grounds that no duty of care was owed failed on the grounds that the facts were complex and this was a developing area of the law. The appeal was successful. Kennedy LJ rejected the notion that the 16 Leakey supra 17 [2004] EWCA Civ 175 5

6 claimant could establish proximity because the defendant had in these circumstances assumed responsibility that the report was giving a legally enforceable assurance to a large cohort of the Bangladeshi population as to the safety of their drinking water. He described the attempt to rely upon the report in this way as a mighty leap which would make the concept of proximity almost meaningless. Wall LJ doubted that a duty of care could be imposed on the defendant which was owed to the entire Bangladeshi population who had drunk groundwater from any of the sources from which the defendant had taken samples. Further, it could not be said that it had any measure of control over or responsibility for the presence of arsenic in the water. The duty of the defendant was owed to the ODA to competently carry out the survey. The body who owed the claimant and other members of the class who might drink that water a duty of care to ensure that it was safe to drink was the Bangladeshi government. It seems that the Court of Appeal (and in particular Wall LJ) was especially influenced by the lack of assumption of responsibility by the defendant for the supply of water in Bangladesh. Neither had they done anything to cause the arsenic to enter into the water supply. In those circumstances, it was difficult to see how the defendants owed a duty of care to the claimants in respect of the water supplied to them. However, looking at the proximity aspect of the case, the decision illustrates more generally the challenge which may face claimants who are seeking to fix a polluter with a duty of care owed to them in respect of injuries suffered. The greater the distance between the polluter and the claimant, the more difficult it will be to show that the polluter owed the particular claimant a duty not to injure him through the emission of gases or discharge of chemicals into a water supply or the like. BREACH OF DUTY If a duty is owed, then the defendant will be negligent if he fails to do something which a reasonable man, guided upon those considerations which normally regulate the conduct of human affairs would do, or to do something which a prudent and reasonable man 6

7 would not do 18. That reasonable man must the given the relevant characteristics of the Defendant the standard to be judged is that of the reasonable waste disposal operator or the reasonable factor owner and so forth. The conduct will be assessed by the standards of knowledge prevailing at the time that the conduct complained of occurred. It must be borne in mind that the Defendant need only act in accordance with a responsible body of practice (the Bolam test). Thus, there will be no breach if the Claimant can only show that a different waste disposal operator or factory owner might have acted differently, provided that there are those who would have done what the Claimant did in the conduct of its affairs. A particular problem for a Claimant may be the fact that the Defendant has complied with the appropriate regulatory framework. In Budden v BP & Shell 19, infant claimants brought actions against oil companies claiming damages in negligence for personal injury caused by the lead content of the defendants petrol. They alleged that the defendants should have ceased before July 1978 to add any lead to petrol which they refined and sold or at least have reduced the proportion of lead in their petrol. The claims were struck out on the basis that the claimants could not show fault, the defendants averring that they had complied with the regulations made under the Control of Pollution Act 1974 setting the maximum limits for lead content in petrol. The Court of Appeal stated that it could not see how a judge could hold that the defendants were in breach of any duty owed to the claimants once it was clear that they had complied with the requirements prescribed by the Secretary of State. This is not to say that there is a statutory defence in the Control of Pollution Act 1975 for defendants meeting the statutory requirements in respect of common law liabilities. However, compliance with those requirements appears on the face of it to negate the possibility of a successful action in negligence in respect of the conduct complained of. The position in water quality and air quality cases is somewhat different. The grant of a 18 Blythe v Birmingham Waterworks Co [1856] 11 Exch [1980] JPL 586 7

8 licence (a consent) to discharge polluting matter into water does not affect the common law rights of a riparian owner to sue the discharger, even if the amounts being discharged are within the limits of the consent. The fact of compliance with the consent is relevant and persuasive, but not conclusive, in determining whether there has been negligence. The effect may well be to defeat the claimant s claim, albeit at a later stage of the proceedings. Although the liability which was sought to be imposed was of a different nature, the decision in Marcic is illustrative of the respect with which legislative standards will be treated by the courts. It will be recalled that in Marcic, the claimant sought to bring a claim in nuisance and under the Human Rights Act 1998, thereby side-stepping the statutory scheme under the Water Industry Act The terms of the Act did not prevent an action being brought in respect of the omission complained by Mr Marcic, namely the failure by Thames Water to provide sufficient sewage facilities 20. Their Lordships were particularly mindful of the existence of the statutory scheme, and the fact that Parliament had entrusted the responsibility for that scheme to the Director General of Water Services, in determining whether the claimant should be permitted to succeed in his private law claims. In rejecting Mr Marcic s claim, Lord Nicholls said 21 In my view the cause of action in nuisance asserted by Mr Marcic is inconsistent with the statutory scheme The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the Director was intended to discharge when questions of sewer flooding arise 20 s.18(8) of the Water Industry Act provides Where any act or omission constitutes a contravention of a statutory or other requirement enforceable under this section, the only remedies for that contravention, apart from those available by virtue of this section, shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting such a contravention 21 Paras of the judgment 8

9 The possible existence of a criminal conviction is a matter which ought to be borne in mind when advising a claimant in a claim for civil compensation. Enforcement of liability for public nuisance will often involve magistrates court proceedings. Although the existence of such a conviction is not conclusive of the issue in a civil court, it is likely to be conclusive on the issue of fault in the absence of any other factors. The doctrine of res ipsa loquitur 22 can be of assistance in some environmental cases. This is most useful in those cases where a single incident is complained of, such as an explosion leading to the emission of poisonous gases or a single leak leading to the emission of dangerous substances into a river. Where a claimant has suffered personal injury from such an incident, he may well seek to argue that such an incident would not arise in the normal course of events in the absence of some fault on the part of the person responsible for the plant from which the emission or leak escaped. FORESEEABILITY Foreseeability will also be of some importance in an environmental liability claim. Once the claimant has shown that the polluter owes him a duty of care in respect of the damage complained of, it must be shown that the particular kind of damage to that particular claimant is not so unforeseeable as to be too remote. In this regard, there is no difference between liability in negligence, nuisance or the rule in Rylands v Fletcher. The decision in Cambridge Water Co v Eastern Counties Leather plc 23 suggests that it will not be sufficient for a claimant to show that pollution of some kind will be foreseeable to impose liability. It may be recalled that the Cambridge Water case involved the spillage of chlorinated solvent over many years up to 1976 as a result of the defendant company s practice of lifting by forklift truck large drums of solvent. The drums were occasionally punctured by the forklift. The solvent descended into the 22 Scott v London & St Katherine Docks Co [1865] 3 H & C 596 where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen is those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendants, that the accident arose from want of care 23 [1994] 1 All ER 53 9

10 ground and entered the claimant company s borehole from where it obtained a water supply. The supply became contaminated to the extent that it was unusable by reason of the water being in breach of the Water Quality Regulations. The House of Lords held that it would have been reasonably foreseeable to contemplate that regular small spills could have led to toxic fumes and possible respiratory illness. However, they considered unforeseeable the prospect that the solvent would descend into the ground and spread laterally so as to affect the borehole. This is an issue of considerable importance in environmental cases. There are many examples of past environmental practices which may give rise to personal injury claims e.g. the use of drum graves as a method of waste disposal becoming corroded and subsequently contaminating the land or a landfill site becoming methane active some decades after being tipped by a local authority. It may be difficult to show that, at the relevant time, the damage coming to light was reasonably foreseeable by the potential defendant. The trial judge will have a wide margin of discretion in determining this issue 24. CAUSATION This is one of the most challenging aspects of a personal injury case in which pollution is alleged to have caused the injury, especially as the scientific and medical evidence will frequently be complex. There is a broad distinction to be drawn between (i) traumatic injuries arising from a oneoff event, (ii) injuries arising from one-off exposure and (iii) cumulative injuries arising from repeated or long-term exposure. The challenges are posed by the latter examples. In one-off exposure cases, the injury is caused by a single event which may take place in the context of multiple events. For example, mesothelioma can be caused by a single asbestos fibre. A person may be exposed to asbestos fibres on a regular basis which will 24 See for an example of a case being decided in favour of the claimant Eckersley v Binnie [1988] 18 Con LR 1 (the Abbeystead disaster case). 10

11 increase the risk of developing the cancer, but that repeated exposure will not contribute to the actual injury suffered. In cumulative injury cases 25, all exposure will contribute to taking the claimant to the threshold for developing the disease and then, once the threshold has been reached, all exposure contributes equally to exacerbating the disease. The cumulative nature of developing diseases led to the formulation of the material contribution test of causation in such cases. In Bonnington Castings v Wardlaw 26, the claimant had been exposed to dust from metal grinders which had led to him developing pneumoconiosis. The relevant breach of duty was to fail to reduce the claimant s exposure to the dust, not to prevent any exposure whatsoever. Had the defendant not breached that duty, the claimant would still have been exposed to dust and the risk of pneumoconiosis. However, as the claimant could show that the dust to which he should not have been exposed had contributed to the disease, he was entitled to recover in full. This was the approach upheld in McGhee v NCB 27. The further development came about in applying this test of causation to the category 2, one-off exposure type of case, and in the endorsement of the view that proving contribution to an increased risk of developing the relevant condition could satisfy the test of causation. In Bryce v Swan Hunter 28, the claimant developed and died of mesothelioma arising from his exposure to asbestos working in a shipyard for nearly forty years. During that time, the shipyard had changed hands many times. The estate sued three of the companies who had owned the shipyard during the period of the claimant s employment. They were all found in breach of the duty to reduce exposure to asbestos. However, the claimant (a) would still have been exposed to asbestos had they complied with their duties and (b) there had been exposure by defendants who not been sued. The asbestos to which the claimant had been exposed by the defendants amounted to less than a half of the total exposure. However, Phillips J found in favour of the claimant. The fact that the defendants breaches of duty increased the risk of developing mesothelioma and that the claimant had developed the 25 E.g. asbestosis, silicosis, dermatitis, deafness, vibration white finger, carpal tunnel syndrome, asthma, repetitive strain injury 26 [1956] 1 AER [1973] 1 WLR 1 28 [1986] 3 AER

12 condition meant that each defendant was to be taken to have caused it by its breach of duty. In Fairchild v Glenhaven Funeral Services Limited 29, the House of Lords held that a claimant could recover damages 30 in this type of case if he could show that (i) (ii) (iii) (iv) (v) (vi) he was employed by the defendant the defendant was subject to a duty to prevent him from inhaling asbestos because of the known risk of mesothelioma the defendant breached that duty causing the claimant to inhale excessive asbestos the claimant developed mesothelioma the mesothelioma was developed as a result of exposure at work the risk of the claimant developing mesothelioma was increased by the breach of duty by the defendant The potential significance of the Fairchild decision in an environmental context arises from Lord Rodger s speech, namely that the principle is not to be restricted to occupational cases. Thus, the increased risk test of causation can be employed where a claimant can show (a) that he has proved all that is possible in the absence of available scientific knowledge to establish a causative link (b) the defendant s wrongdoing has materially increased the risk to the claimant personally of suffering injury (c) the defendant s conduct was capable of causing the claimant s injury (d) the injury was caused by the eventuation of the kind of risk caused by the defendant s wrongdoing 29 [2003] 1 AC It is a matter for separate enquiry whether a defendant who is thus made liable to compensate the claimant can then seek to apportion liability between himself and another defendant and so reduce his financial liability to compensate the claimant 12

13 (e) usually, that the injury was caused by an agency operating in substantially the same way as that involved in the defendant s wrongdoing EVIDENCE As was stated above, an environmental liability case may throw up a plethora of complex evidence, particularly of a scientific nature. It is important to bear a mind that the court will apply a common sense approach to the question of causation. A defendant will often seek to argue that the claimant cannot succeed because he cannot show the precise way in which his injuries were caused. However, in Kay v Ayrshire and Arran Health Board 31, it was said by Lord Keith that if there is acceptable medical evidence that the defendant s action would increase the risk of injury to the claimant, it would be immaterial that medical science was unable to demonstrate the precise mechanism whereby the risk was increased. However, it remains the case that questions of evidence remain of central importance. Evidence may fall into four main categories (a) historical evidence (b) toxicological evidence (c) medical evidence (d) epidemiological evidence Historical evidence will firstly involve gathering from the claimant a full and detailed statement of the events of which he complains. It is important to gather information about contact with emergency and/or regulatory agencies and the defendant. Possible lines of enquiry will include the police, the Fire Brigade, local government officers and the Environment Agency in respect of relevant records. 31 [1987] 2 All ER

14 The assessment of toxicological evidence will require consideration (1) whether the substance in question is capable of causing the injury complained of (2) what exposure to that substance is necessary to cause the illness and (3) what was the claimant s exposure to the substance. A guide to the toxicity of a substance should be found in chemical cases in the Health and Safety Guidance Notes for that chemical or group of chemicals. Whilst this will be sufficient in the first instance, it is not a substitute for adducing the evidence of a toxicologist at trial. Medical evidence will in the main be that which would be required for any personal injury case. However, it will be important to carry out a differential diagnosis, namely to determine, based on the analysis of the clinical data, which of two or more diseases with similar symptoms is the one from which the claimant is suffering. Epidemiological evidence will be that gathered from the study of the distribution and determinants of disease in the population which identifies associations between specific forms of exposure and the risk of disease in groups of individuals. This is an assessment of general as opposed to specific causation, namely whether the particular factor in question is capable if causing the disease. The strength of an association is usually identified by the measure of relative risk ( RR ) the ratio of the incidence of disease in exposed individuals compared to the incidence in unexposed individuals. The use of such evidence will usually cause considerable controversy, and for this reason should be treated with caution. CONCLUSION This article can only touch on some of the more important aspects, in the authors view, of litigating personal injury claims in an environmental context. It is hoped, however, that this gives a flavour of the particular considerations which must be borne in mind when considering such a claim. 14

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