Corby Group Litigation, Re

A local authority carrying out extensive reclamation of contaminated land owes a duty to take reasonable care to prevent contaminated dust, mud and waste escaping and exposing the public. The standard is that of an ordinarily careful local authority, assessed by contemporary knowledge and practice. It is reasonably foreseeable that harmful substances may reach pregnant women and affect embryos or foetuses; the precise birth defect need not be foreseeable. Public nuisance may arise from unlawful conduct endangering public health, without proof of negligence. The Environmental Protection Act 1990 creates substantially the same civil standard of reasonable care. The court found prolonged negligence and statutory breaches, with contaminated material capable of causing most of the pleaded limb defects, but left individual causation for later proceedings.

The claim concerned 18 children whose birth defects were alleged to result from exposure to contaminants released during the reclamation of the former British Steel site at Corby. The claimants relied on negligence, breach of statutory duty and public nuisance. The Group Litigation Order required determination of generic issues, including the standard of care, foreseeability, the existence and significance of contamination, possible exposure pathways, teratogenicity and epidemiological evidence. The court also recorded that the Court of Appeal had previously rejected an application to strike out the personal injury claim in public nuisance: [2008] EWCA Civ 463. The central questions were whether the reclamation created actionable breaches and whether those breaches had the ability to cause the pleaded defects.

1. Duty and standard. The defendant owed the claimants and their mothers a duty to take reasonable care in executing the reclamation works. The standard was that of an ordinarily careful local authority undertaking comparable works, judged by the knowledge and standards reasonably available at the relevant time.
2. Foreseeability. It was unnecessary to foresee the precise limb defect. It was sufficient that harm to embryos or foetuses carried by mothers exposed to the relevant contaminants was reasonably foreseeable.
3. Public nuisance. The defendant was liable in public nuisance where its unlawful acts or omissions endangered public health by dispersing dangerous contaminants. Negligence or breach of statutory duty was not an essential ingredient, although either could constitute the unlawful conduct.
4. Statutory duty. Sections 33 and 34 of the Environmental Protection Act 1990 applied from 1 April 1992. Section 34 imposed, in civil proceedings, substantially the same obligation as the tortious duty: reasonable care and skill in preventing unlawful disposal and escape of controlled waste. The criminal reverse burden in section 33(7) did not transfer to the civil claim.
5. Breaches and exposure. The defendant failed to conduct adequate investigations, control contaminated waste, provide effective wheel washing and road sweeping, suppress dust, sheet vehicles, supervise contractors and operate the Deene Quarry tip lawfully. These breaches operated from 1985 until August 1997 and caused widespread dispersal of contaminated mud and dust.
6. Scientific findings and outcome. Cadmium, chromium, nickel, PAHs and dioxins were capable of causing most of the pleaded defects, while Ehlers-Danlos syndrome and the unusual condition of the last-born claimant were excluded. The evidence showed a statistically significant cluster of upper-limb defects in Corby, but epidemiology alone did not establish causation. The generic issues were answered in the claimants’ favour, subject to individual claimants proving actual causation in later proceedings.

• Court of Appeal: In the same litigation, the claimants’ public nuisance claim for personal injury was permitted to proceed: [2008] EWCA Civ 463, also reported at [2009] 2 WLR 609.
• High Court (Technology and Construction Court): The generic group litigation issues were determined substantially in favour of the claimants. Individual liability and causation remained for later proceedings.