Corby Group Litigation v Corby Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lady Justice Smith,Lord Justice Ward |
| Judgment Date | 08 May 2008 |
| Neutral Citation | [2008] EWCA Civ 463 |
| Docket Number | Case No: B3/2007/2352 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 May 2008 |
[2008] EWCA Civ 463
Lord Justice Ward
Lord Justice Dyson and
Lady Justice Smith
Case No: B3/2007/2352
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Master Leslie
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Utley (instructed by Berrymans Lace Mawer) for the Appellant
Kenneth Hamer (instructed by Messrs Collins Solicitors) for the Respondents
Hearing dates: Thursday 24 April 2008
Introduction
The 18 claimants were all born between 1986 and 1999 with deformities of the upper limbs. Between 1983 and 1989, Corby Borough Council (“the Council”) acquired approximately 680 acres of land (“the Land”) in Corby, Northamptonshire from the British Steel Corporation with a view to reclamation and redevelopment. It was heavily contaminated. The claimants allege that their mothers, who lived close to the Land, were exposed during the embryonic stage of their pregnancies to toxic materials in the course of the Council's reclamation and decontamination programme and that this exposure caused the deformities.
On 15 June 2006 Group Particulars of Claim were served. This is an elaborate and rather difficult document. The case as then pleaded was based on negligence alone. By their defence, the Council admitted the duty of care, but denied any breach. They also denied that the claimants' limb deformities were caused by the exposure of the claimants' mothers to toxic materials emanating from the Land.
The Council applied to strike out parts of the Group Particulars of Claim on the grounds that they disclosed no reasonable cause of action and/or were an abuse of process. On 23 March 2007, with a view to obtaining clarification of the claimants' case, Master Leslie sensibly ordered them to serve additional points of claim setting out their allegations of breach of duty and how the breaches were alleged to have caused the injuries.
In response to this order, on 27 April 2007 the claimants served additional points of claim. At paragraph 7, they pleaded particulars of negligence under 14 sub-paragraphs. But they also introduced allegations of breach of statutory duty (sections 33(1)(c) and/or 34(1)(b) of the Environmental Protection Act 1990) and public nuisance. The Council did not object to the introduction of the claim for breach of statutory duty. They did, however, object to the introduction of the claim in public nuisance. They said that, as a matter of law, damages for personal injury cannot be recovered for public nuisance. They applied to Master Leslie to strike out the claim in public nuisance.
In a judgment given on 25 June 2007, the master said that this was a “developing area of the law” and he was not satisfied that the claim in public nuisance had no real prospects of success. Accordingly, he dismissed the Council's application to strike out the claim in public nuisance.
The Council sought permission to appeal. Foskett J gave permission but, in view of the importance of the point, he ordered that the appeal should be heard by the Court of Appeal.
The background facts
For the purposes of this appeal, it is not necessary to set out the facts in any detail. But I need to say a little more than I have already said so that the nature of the allegations can be better understood. The Land includes three sites to which reference is made in the Group Particulars of Claim. The Deene Quarry Tip site is approximately 188 acres in area and is situated to the north east of Corby. It was constructed by the Council to take contaminated waste generated by the reclamation works. The Soothills/Sootbanks site is approximately 27 hectares in area and is situated to the south east of Corby. Some of the heavily contaminated material was transported by road from the Soothills/Sootbanks site to the Deene Quarry site. The Willowbrook North site is to the south of the Deene Quarry site. It too was heavily contaminated. Some of the material from the Willowbrook site was also transported to the Deene Quarry site. Some remained in situ and was used as backfill for various reclamation contracts. The Soothills/Southbanks and Willowbanks sites were the original industrial sites which had to be cleared.
The allegations of negligence in outline
Although there are 14 particulars of negligence pleaded at paragraph 7 of the additional particulars of claim, for present purposes they can be distilled into the following. It is alleged that the Council were negligent in causing or permitting (i) the windborne escape from 1985 onwards of toxic materials into the atmosphere from the sites to which I have referred; (ii) the disturbance of solid material during the reclamation operations leading to its carriage as dust or small particles in the air; (iii) the vaporisation of volatile fluids from the sites leading to chemicals being carried as vapours in the air; (iv) the spreading of toxic sludges along roads by vehicles during the reclamation work; and (v) the use of dozens of lorries to transport substantial quantities of contaminated waste from the Soothills and Sootbanks sites to the Deene Quarry site without taking any or any adequate steps to protect persons in the surrounding area (including the claimants' mothers) from the effects of the escape of the toxic waste.
The plea of public nuisance
The public nuisance claim is pleaded in these terms:
“11. Further, the reclamation programme arose directly from the Defendant's use and/or control and/or occupation of the various sites which made up the former Steel Works complex. The Defendant allowed toxic material to escape from the Deene Quarry, Willowbrook North, and Soothills and Southbanks sites into the community and surrounding area and/or allowed the spread of contaminated liquids and toxic sludges on to and along the public highway by vehicles during the reclamation works above which thereby endangered the health of the public and caused personal injury to the Claimants and their mothers.
12. In the premises, the Defendant is guilty of a public nuisance.”
The Council's argument
Mr Utley concedes that it has long been accepted that damages for personal injury are recoverable in public nuisance and that there are many cases both at first instance and in the Court of Appeal in which such damages have been awarded. He submits, however, that the recoverability of such damages has never been in issue and, therefore, it has never been the subject of a reasoned decision: it has always been assumed that damages for personal injury are recoverable in public nuisance. He argues that, in the light of the decisions of the House of Lords in Hunter v Canary Wharf Limited [1997] AC 655 and Transco plc v Stockport MBC [2003] UKHL 61, [2004] 2 AC 1, it can now clearly be seen that this assumption is wrong and that previous cases in which personal injury damages have been awarded for public nuisance have been wrongly decided. This is because (to use the language of Professor Newark's seminal article “The Boundaries of Nuisance” (1949) 65 LQR 480, 489) in public nuisance, as in private nuisance, “the interest of the plaintiff which is invaded is not the interest of bodily security, but the interest of liberty to exercise rights over land in the amplest manner”.
Mr Utley accepts that the right to recover damages for personal injury in public nuisance was not expressly rejected by the House of Lords in either of the two decisions on which he relies. That is not surprising since in neither case in the House of Lords was the claim based on public nuisance and in neither case was there a claim for damages for personal injury. In Hunter, the claim by one plaintiff was for damages for negligence and private nuisance for interference with reception of television broadcasts in their homes; the claim by the other plaintiff was for damages for negligence and private nuisance in respect of deposits of dust on their properties caused by the construction of a road. In Transco, the claim was for damages under the rule in Rylands v Fletcher (1868) LR 3 HL 330 for the cost of repair to a gas main necessitated by the collapse of an embankment as a result of the escape of water from a fractured pipe.
Mr Utley submits, however, that previous authorities in this court and in lower courts where personal injury damages have been awarded in public nuisance cannot stand with these two decisions and should no longer be followed. Professor Newark's article argues that personal injury damages should not be recoverable in public nuisance and Mr Utley submits that the two decisions of the House of Lords approved his reasoning. The question that arises in this appeal is whether the claimants should be permitted to amend their particulars of claim to advance their claim in public nuisance. Mr Utley accepts that the only basis on which the amendment can be disallowed is that such a claim would have no real prospects of success. It is not suggested that the Council would be prejudiced by the amendment.
Discussion
It is clearly established that damages for personal injury cannot be recovered for private nuisance. This is because private nuisance is a tort based on the interference by one occupier of land with the right in or enjoyment of land by another: see, for example, Hunter per Lord Lloyd of Berwick at p 696D and per Lord Hoffmann at p 706F-H. The same applies to claims under the rule in Rylands v Fletcher which is a sub-species of private nuisance: see Tran...
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