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 – vStockport Borough Council1 makes it clear that damages for personal injury cannot be
obtained in either nuisance or Rylands v Fletcher. As says Lord Bingham of Cornhill2
“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
2
[2003] 3 WLR 1467
See para 9 of the judgment
1
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 injury3.
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”) 1998. 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 – Spain4.
However, the recent decision of the House of Lords in Marcic v Thames Water Utilities
Limited5 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
(1991) 20 EHRR 277
5
[2003] 3 WLR 1603
4
2
Director General for Water Services by means of serving an enforcement notice requiring
such works to be done6. 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 order7. 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 UK8 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 remarked9 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 future10.
6
Water Industry Act, s.18
s.22
8
Unreported, 8 July 2003
9
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.
7
3
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 Kemp11, 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
lightning12, to prevent soil subsidence collapsing onto neighbouring houses13, to prevent
loss of support due to landslips14 or to prevent the incursion of tree roots onto a
neighbour’s land15.
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 74
Goldman v Hargrave [1967] 1 AC 645
13
Leakey v National Trust [1980] QB 485
14
Holbeck Hall Hotel Limited v Scarborough BC [2000] QB 836
15
Delaware Mansions Limited v Westminster CC [2002] 1 AC 321
12
4
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
disposal16.
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
Council17 (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
17
Leakey supra
[2004] EWCA Civ 175
5
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
would not do18. 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 & Shell19, 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
19
Blythe v Birmingham Waterworks Co [1856] 11 Exch 781
[1980] JPL 586
7
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 1991. 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 facilities20. 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 said21
“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 34-35 of the judgment
8
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 loquitur22 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 plc23 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
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
issue24.
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
increase the risk of developing the cancer, but that repeated exposure will not contribute
to the actual injury suffered. In cumulative injury cases25, 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 Wardlaw26, 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 NCB27 . 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
Hunter28, 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 615
27
[1973] 1 WLR 1
28
[1986] 3 AER 801
11
condition meant that each defendant was to be taken to have caused it by its breach of
duty.
In Fairchild v Glenhaven Funeral Services Limited29, the House of Lords held that a
claimant could recover damages30 in this type of case if he could show that
(i)
he was employed by the defendant
(ii)
the defendant was subject to a duty to prevent him from inhaling asbestos
because of the known risk of mesothelioma
(iii)
the defendant breached that duty causing the claimant to inhale excessive
asbestos
(iv)
the claimant developed mesothelioma
(v)
the mesothelioma was developed as a result of exposure at work
(vi)
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 32
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
30
12
(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 Board31,
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 417
13
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.
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