The Corby case continues

Kenneth Ross on the high profile negligence claims against Corby Borough Council following brownfield reclamation in the borough.

On 10 December 2009 Corby Borough Council were granted permission to appeal against the decision in Corby Group Litigation v Corby District Council. While the Corby case has attracted a great deal of attention, it has also generated a number of misunderstandings about what it does and does not do. The claim relates to birth defects said to have been caused to a group of children born between 1986 and 1999 as a result of negligence, breach of statutory duty and public nuisance on the part of Corby Borough Council (CBC) and its statutory predecessor, Corby District Council, in connection with the reclamation of an extensive British Steel site to the east of the town of Corby.

There are a number of points which must be noted about the case:
• It does not create any new law – it merely applies existing law.
• It was not an open ended enquiry – it was the first stage in an adversarial process.
• It does not award any money to anyone – it merely considered and addressed specific issues which were generic and common to the various claimants.

So why is the Corby judgement important?
It is a clear illustration of how the law works. It is also a very clear warning of some of the consequences which can ensue if things go wrong.

The factual background is reasonably straightforward. Corby was a long-standing steel making town but unfortunately the steelworks shut down from 1980 onwards.

The council acquired the bulk of the steel making sites and remediated them between 1983 and 1997. The allegation is that birth defects were caused as a result of ingestion or inhalation of harmful substances generated by the reclamation works and spread in various ways through many parts of Corby.

The harmful substances are said to have been cadmium, chromium, nickel, dioxins and PAH’s on their own or in combination.

The basic problem does not relate to the fact that the former British Steel site was contaminated. The problems allegedly arose because decontamination works were not carried out correctly and spread the contaminants.

What were the legal grounds for the claim?
The legal grounds were negligence, breach of statutory duty and public nuisance on the part of the council. The principal finding was however, one of negligence.

In order to establish a claim in negligence a claimant must establish that a duty of care is owed by the defendant to the claimant, the defendant has breached that duty and there has been foreseeable damage to the claimant resulting from the breach.

In this case there was a vast amount of evidence presented regarding the manner in which the decontamination works were carried out. One of the Overall Findings (at paragraph 886 of the judgement) states the following:-

“The case was opened and pursued by the claimants on the basis that there was a systemic breakdown within CBC throughout the period; this involved a scattergun approach in the presentation of its case which became more focused as the trial proceeded. I do not consider that there was a
“systemic” breakdown as such within CBC: what happened was that it bit off more than it could chew and did not really appreciate the enormity, ramifications and difficulty of what it was setting out to achieve in terms of removing and depositing very substantial quantities of contaminated material.”

The principal findings of the judgement were as follows:-
• The council owed a duty of care to the claimants
• The council did breach that duty of care in certain respects
• The breach of the duty of care did have the ability to cause physical defects to the claimants of the types claimed (with one exception)
• The alleged loss were foreseeable
• In the alternative the council was liable to the claimants in public nuisance and under Section 34 of the Environmental Protection Act 1990

This is nowhere near the end of this matter. The result of the Corby case opens the way for 16 members of the claimant group to pursue a compensation claim provided each child can demonstrate a causal link between the council’s activity and their own disability. As we have seen above, however, the Council has received leave to appeal against the result of the original case and accordingly this
litigation will go on for some time.

The impact of the Corby case serves to illustrate that the law will make you liable for the consequences of your actions. In particular, the considerable care required in carrying out decontamination works is evident – if you take on a decontamination job you have to carry it out correctly. If you don’t then the consequences can be severe.

Kenneth Ross is a partner at Brodies LLP. He is also an honorary Professor at Glasgow University and is accredited as an expert in environmental law by the Law Society of Scotland. For more information on any of the issues discussed please contact kenneth.ross@brodies.com.