Mrs Susan Saunderson & Others v Sonae Industria (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 30 July 2015 |
| Docket Number | Case No: 2MA90124 |
| Court | Queen's Bench Division |
| Date | 30 July 2015 |
[2015] EWHC 2264
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION MANCHESTER DISTRICT REGISTRY "SONAE GROUP LITIGATION"
Liverpool Civil and Family Court
35 Vernon Street
Liverpool L2 2BX
Mr Justice Jay
Case No: 2MA90124
Mr Michael Redfern QC, Mr Pepin Aslett and Miss Alice Dobbie (instructed by Camps Solicitors) for the Claimants
Mr Michael Kent QC and Mr Michael Jones (instructed by Clyde & Co Claims LLP) for the Defendant
Hearing dates: 3 rd– 5 th, 8 th– 12 th, 15 th– 19 th, 22 nd– 26 th June 2015
Approved Judgment
INTRODUCTION
This group litigation involves numerous similar claims for damages for personal injuries, in the torts of negligence and public nuisance, brought by 16,626 Claimants arising out of a major fire at the Defendant's particle board manufacturing plant at Knowsley Industrial Park, Kirkby commencing on Thursday 9 th June 2011, at approximately 17:30. The seat of the fire was bunker no. 1 in the Woodyard building at the plant, but the fire spread to all six bunkers in the building, causing a very substantial plume of smoke, fumes, associated chemicals, and particulate matter to issue forth into the surrounding area. In due course, most of the flammable contents of the building were consumed in the fire. The Claimants, all of whom either lived or worked in the neighbouring area or near the plant, say that they were exposed to quantities of smoke sufficient to cause them personal injuries: in particular, a range of symptoms variously involving the respiratory tract, the eye, and the skin; and in some cases headache and more general debility. Fortunately, no one has alleged symptoms of any permanence, and it is accepted that these are low-value claims.
Since a Group Litigation Order was made in this case by Hamblen J on 12 th July 2012, the issues between the parties have narrowed considerably. By its Group Defence filed on 25 th January 2013, the Defendant admitted breach of duty in respect of those who might foreseeably suffer injury in consequence of exposure to the smoke. This admission has removed a layer of evidential exploration, and concomitant potential complexity, from the scope of the litigation. Both the existence and causation of actionable injury remain hotly disputed.
By Order dated 17 th June 2014 the court directed that there be a trial of common issues and of 40 test cases (at a pre-trial review which took place on 5 th May 2015 I reduced the number of test cases to 20). The issues scheduled to that Order (being the varied GLO issues for the purpose of CPR Part 19.13) are:
"1. When did the fire start and how did it spread?
2. What part of the site in addition to the Woodyard Building was affected by the fire?
3. What was the quantity of recycled wood in the Woodyard Building and any other part of the site affected by the fire when the fire started?
4. What was the composition of such recycled wood when the fire started?
5. What other materials were in the Woodyard Building and any other part of the site affected by the fire when the fire started?
6. For how long did the fire burn/smoulder?
7. When did the recycled wood/other materials burn in the fire?
8. What was the heat output of the fire over time?
9. What were the meteorological conditions during the fire?
10. What was the geographical spread of the smoke plume during the various stages of the fire?
11. What was the chemical composition and concentration of the smoke, in the geographical area in which exposure is alleged, during the various stages of the fire?
12. What air quality or equivalent standards apply to exposure to the smoke?
13. What, if any, air quality or equivalent standards apply to short term exposure to the smoke?
14. What is the relevance of such air quality or equivalent standards that exist to short term exposure?
15. Does Rylands v Fletcher apply?
16. What are the findings from the 40 test cases and how should those findings apply to the issues in the individual cases, including:
(i) the extent of the Claimants' smoke exposure.
(ii) the nature of any injury suffered by the Claimants.
(iii) the diagnostic criteria for any such injury.
(iv) the duration of symptoms attributable to any injury suffered by the Claimants.
(v) the cause of any such injury.
(vi) whether such injury was foreseeable.
(vii) whether such injury was actionable in law.
(viii) the relevance of pre-existing medical conditions.
(ix) the relevance of other environmental factors such as cigarette smoke.
(x) Damages (if any)"
Since this Order was made, it is apparent that (a) a number of issues have fallen away, either through redundancy (e.g. issue 15) or agreement (e.g. issue 9), and (b) some of the issues require refinement in the light of the parties' greater understanding of the case and/or the Joint Statements of the experts. It is unnecessary to take time in the reformulation of the common issues in this introductory section of my judgment. The Skeleton Arguments filed at the beginning of this trial have served to stake out the battleground, and indeed during the course of the 18 day hearing a number of issues either disappeared altogether or the parties' respective positions in relation to them converged. I should also record that at a late stage in this litigation an application was made to vary the GLO issues to enable the Claimants to pursue nuisance and annoyance claims which differed from, or fell short of being, claims for damages for personal injuries, but I refused that application because it came far too late and the Defendant had all along been meeting these claims on the basis that they were solely claims for personal injury damages – see, for example, the original GLO issues as set out in the Order of Hamblen J.
My judgment will set out the essential factual background in order to provide sense and context to readers unfamiliar with this litigation, but the main focus of what follows will be on what remains in dispute. In truth, not all of the voluminous evidence I received, either orally or in writing, has been entirely relevant to the matters remaining in issue. Moreover, the oral evidence has been transcribed by Livenote, which may readily be referred to if this case goes further.
THE DEFENDANT'S PLANT AND MODUS OPERANDI
The parent company of the Defendant is Sonae Industria SGPS SA, incorporated in Portugal and a global producer of wood-based products. The Kirkby plant opened in July 2000 and ceased production on 14 th September 2012. At the time of the fire, the plant operated for 24 hours a day, 7 days a week, and produced approximately 400,000m 3; of chipboard product a year. Back in 2000, virgin wood was mainly used, but by 2011 the Defendant's evidence was that 99% of the raw material was recycled wood – with a lesser moisture content and a greater degree of contamination from sundry extraneous matter such as plastic, metal, glass, concrete and general detritus. The use of recycled wood also magnified the inherent fire risk consequent on the storage of a dry, dusty product in a relatively closed environment, and I heard evidence of a significant number of fires before the incident presently under scrutiny. In my view, it is unnecessary to examine the quantum of that risk, and the reasonableness of the Defendant's steps to minimise it, because breach of duty is not in issue.
The parties called a number of witnesses to explain the workings and operation of the plant. By way of summary, and avoiding matters of controversy at this stage, external suppliers delivered the recycled woodchips to the plant in vehicles variously described as lorries, trucks or wagons. The capacity of these vehicles was up to 25 tonnes, but on average was in the region of 22 tonnes. Although the plant maintained a continuous operation throughout the week, the vast majority of deliveries took place during normal working hours with only around 4% of the total of 386 deliveries a week at weekends. According to the evidence of the Defendant's quality control manager, Mr Mark Callaghan, incoming deliveries were weighed at the weighbridge and then directed to any one of three areas where, after visual inspection and the possibility of rejecting sub-standard consignments, the loads were taken off the vehicles to be introduced in due course into the Defendant's processes. Aside from the external yard where considerable quantities of unprocessed woodchip may be seen on a number of photographs, the loads were either removed from the vehicles using massive hydraulic, tipping devices called Cometers, or were more straightforwardly unloaded onto the walking floor of the woodyard building. Thereafter, the loads underwent an initial cleaning process (the nature of which varied depending on the pathway taken) before woodchips (by now measuring between 1 and 80mm) were transferred, primarily by overhead conveyors, into any one of six concrete bunkers which were in the same building. These bunkers were contained in three separate silos aligned across the woodyard building in pairs of two. Simultaneously with the deposit of woodchip into the bunkers, this material was being withdrawn via a similar conveyor process (involving the use of a large screw at the bottom of each bunker) to be subjected to further cleansing and manufacturing processes "upstream".
The diagram appearing below clearly depicts the general layout of the plant. The construct I am describing as the woodyard building comprises the Cometer area and the Flaker Hall; the external yard is marked on the plan as Chip Storage Areas 1 and 2. Given that the fire started in one of the concrete bunkers in the woodyard building, it is unnecessary to describe later stages in the Defendant's processes culminating in the manufacture of the finished product, namely...
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