Local authority – Negligence — Statutory duty – Public nuisance – Defendant council carrying out land reclamation scheme – Reclamation involving excavating and transporting contaminated materials – Claimants born during reclamation period suffering birth defects – Whether defendants liable for breaches of duty or public nuisance – Claim allowed
The claimants were born between 1986 and 1999 and had suffered birth defects. In group litigation against the defendant local authority, they alleged negligence, breach of statutory duty under the Environmental Protection Act 1990 and public nuisance in respect of the reclamation of an extensive industrial site. The works included the demolition of superstructures and substructures, the construction of new roads and sewers, service diversions, finishing works such as footpaths, topsoiling, lanscaping and reseeding, the creation of tip containment facilities for contaminated materials and the construction of balancing reservoirs.
The claimants contended that their birth defects had resulted from their pregnant mothers’ ingestion or inhalation of harmful substances generated by the reclamation works and spread in various ways throughout the general area.
It was common ground that the defendants, as owners of the site, owed a duty of care to the claimants and their mothers to avoid causing them injury in carrying out the works. The principal issue for the court was whether any breaches of duty or public nuisance might realistically have caused the birth defects.
Held: The claim was allowed.
The claimants had established that the defendants had been negligent and had breached their statutory duty. The facts supported by the waste-management evidence proved the occurrence of continuing breaches of the duty of care owed to the claimants, public nuisance and breaches of statutory duty on the part of the defendants throughout the entire period; those defaults had led to the extensive dispersal of contaminated materials from 1985 (and before) until 1997.
The standard of care to be exercised by the defendants was that of an ordinarily careful local authority undertaking reclamation works. The duty was to be judged by reference to the standards known or reasonably ascertainable and the knowledge available at the time. Thus, if standards had materially changed over the period within which the claim was concerned, any breach of the duty would be determinable by reference to the standards applicable at the time of the breach, and not by subsequent standards.
This case was necessarily and obviously concerned with the dispersal of toxic substances from the defendants’ site. Therefore, the court was primarily concerned with any breaches of the duty that had caused the dispersal of such substances into areas in which the claimants’ mothers might have ingested or inhaled them. It was not necessary that the defendants would or could reasonably have foreseen the precise type of birth defect suffered by the claimants. It was enough that it was reasonably foreseeable that harm or damage might be caused to embryos or foetuses at the material time.
It was generally the case in negligence that provided that the defendant had selected independent contractors with reasonable care and skill it would not be liable for the negligence of those independent contractors, save to the extent that it had been negligent in supervising and monitoring their work. The exception was that if an employer had engaged or contracted others to carry out work that involved, in the eyes of the law, special danger to another, the employer would be liable for the negligence of its contractor. The issue of delegation did not arise in the instant case. The negligence as found primarily lay in the defendants’ own negligence and breach of statutory duty; the excavation, transporting and depositing of highly contaminated wastes was essentially and specially dangerous to workers and the public at large.
The question arose as to whether negligence was a vital part of the tort of public nuisance, at least where personal injuries or, as in the instant case, birth defects were said to have arisen. The essence of a case in public nuisance in the context of the instant case was that a party would have committed a public nuisance if, by its unlawful act, it had endangered the life, health or safety of the public. The pleaded case related to the escape of toxic material and the spread of such materials onto public highways, thereby endangering the health of the public. Strictly speaking, negligence or breach of a statutory duty was not essential in public nuisance, although, if negligence or a breach of statutory duty caused life or health to be endangered, a public nuisance would arise. A claimant had the burden of proving on the balance of probabilities that the injuries (or in the instant case the birth defects) had been caused by any proven breaches of duty or public nuisance.
The claimants had also put their case on the basis of a breach of statutory duty under sections 33 and 34 of the Act, which came into force on 1 April 1992 and could therefore apply only to breaches of duty occurring after that time. All the contaminated material removed from the various sites by the defendants and their contractors was “controlled waste” for the purposes of the Act. The civil duty adumbrated by the statute was a duty to exercise reasonable care and skill. Although there might in theory (and exceptionally) be a case in which the exercise of reasonable care was insufficient to do what was reasonable in the circumstances, in practical terms, the statutory and the tortious test did not differ.
David Wilby QC (instructed by Collins Solicitors, of Watford) appeared for the claimants; Stephen Grime QC and Charles Utley (instructed by Berrymans Lace Mawer LLP, of Manchester) appeared for the defendants.
Eileen O’Grady, barrister
