Saunderson & Ors v Sonae Industria (UK) Ltd

Personal injury claims arising from exposure to smoke require proof of actionable injury and material causation. Transient, trifling and self-limiting irritation is not ordinarily actionable injury, although severe irritation or inflammation may cross the threshold. A claimant must prove exposure at a level capable of causing injury; proof merely that exposure increased the risk is insufficient where the case concerns one tortfeasor and one package of potentially causative agents. Exposure may nevertheless materially contribute to injury by exacerbating a pre-existing condition or by adding to background pollution so as to take the claimant above the relevant threshold. Scientific uncertainty does not remove the burden of proof. The court must assess the scientific and lay evidence together, applying the civil standard of proof.

The claims formed part of group litigation brought by 16,626 people alleging personal injury from smoke, fumes, chemicals and particulate matter emitted during a major fire at a particle-board plant. The defendant admitted breach of duty to persons foreseeably injured by smoke exposure. The common issues concerned the fire, emissions, exposure, actionable injury and causation. Twenty test cases were tried within the group litigation framework. The central questions were whether the claimants had suffered actionable personal injury and whether exposure to the fire materially caused or contributed to it.

1. Claims dismissed. Judgment was entered for the defendant. The claimants failed to prove, on the balance of probabilities, that the smoke exposure caused actionable personal injury.
2. Actionable injury is a question of fact and degree. Transient, trifling, self-limiting and reversible irritation ordinarily represents a normal physiological response rather than actionable damage. Severe irritation, particularly affecting several organs and lasting sufficiently long, may cross the threshold, usually where there is evidence of inflammation.
3. The claimants had to prove material causation, not merely an increased risk of injury. The Fairchild form of material contribution to risk did not apply because the case involved one tortfeasor and one package of potentially causative agents. The relevant risk was exposure at a level capable of causing injury.
4. Exposure could materially contribute to injury by exacerbating a pre-existing condition, or by adding to background pollution so as to take the claimant above the relevant threshold. Sub-threshold exposures could not simply be aggregated without an evidential basis.
5. The court adopted indicative toxicological thresholds and treated the plume modelling as the best available scientific evidence, while recognising its inherent uncertainty. The scientific evidence showed that almost all test claimants were below relevant thresholds. The lay evidence was generally vague, inconsistent, exaggerated or unsupported by contemporaneous records, and did not justify lowering the thresholds.
6. The court rejected a general adverse inference from the defendant’s loss of electronic data. The evidence did not show sufficiently reprehensible conduct or that the missing data would materially establish bunker contents. Claims based on a general constellation of symptoms also failed when the individual evidence and exposure levels were examined.