Reclamation Works And Childrens Defects

I found the following piece of news at Building.co.uk, to be quite interesting. It brings to mind the whole issue of "foreseeability" in tort law. Here is the article:

Reclamation works blamed for children's birth defects
29 July, 2009

By Sophie Griffiths

Judge ruled reclamation work in former steel complex in Corby caused pregnant women to give birth to children with underdeveloped fingers and clubbed feet

Reclamation works on a former British steel complex in Corby, Northamptonshire, are to blame for birth defects in 17 children, a judge ruled today.

The case was launched by a group of mothers, on behalf of their children, who had lived in the town or visited the town while pregnant when the reclamation work was being carried out. They later gave birth to children with birth defects such as undeveloped fingers and clubbed feet.

The mothers' claimed against the council, which had taken on the job of the reclamation process, on the grounds of negligence, breach of statutory duty, and public nuisance. They said the land reclamation programme and the presence of poisonous waste presented a significant health risk.

They also claimed the reclamation contracts which continued over 14 years, were so badly managed and materials excavated and transported so unsuitably, that “toxic sludges” blew, leaked and dropped onto roads and surfaces.

The council had denied any exposure to the claimant's mothers of harmful materials capable of causing injuries, and denied it was reasonably foreseeable that the claimants' mothers could have been exposed to substances that could harm them or their unborn children.

But the judge presiding over the trial, which lasted more than three months, ruled today that reclamation works on the site between 1985 and 1999 were capable of leading to some, or all of, the birth defects displayed in the 17 children.

Commenting on the case, Chris Mallender, chief executive of Corby council, said: “We are obviously very disappointed and very surprised at the outcome of this trial. Our position has always been that there was no link between the reclamation work that was carried out in Corby in past decades, and these children's birth defects. That is still our position.

“We recognise mistakes were made and we accept some of the criticism levelled at the council but we have still not seen any evidence to confirm a causal link between the works carried out and the birth defects identified.”

The said case is reported at BAILII. Judgment in the case was delivered on 29th July 2009. Click to read the said case: Corby Group Litigation, Re [2009] EWHC 1944 (TCC) (29 July 2009) The important paragraphs seem to be 800 to 814. The punchline came at 814: "In my judgement, the Claimants have established that CBC was negligent and in breach of statutory duty in the respects pleaded in Paragraph 7 of the Additional Points of Claim as set out above."

What was the content of Paragraph 7 of the Additional Points of Claim? This was enumerated in Paragraph 701 of the judgment:

The Defendant and its servants or agents were negligent in:

(a) Causing or permitting the windborne escape of toxic material into the atmosphere from 1985 onwards from the Deene Quarry, Willowbrook North, Soothills and Sootbanks sites.

(b) Allowing the said sites to remain contaminated notwithstanding reclamation works.

(c) Causing or permitting the disturbance of solid material during the reclamation operations leading to its carriage as dust or small particles in the air and/or the vaporisation of volatile liquids from the sites leading to chemicals being carried as vapours in the air and/or the spreading of toxic sludges along roadways by vehicles during the reclamation works.

(d) Failing to carry out any or any adequate or effective decontamination of toxic waste at the site is whether by dust control, dust suppression, solidification of contaminated waste, or other safety means in order to reduce the risk of exposure to the Claimants' mothers before and or during the embryonic state of pregnancy…

(f) Failing to prevent contaminated liquids and sludges being deposited by dump trucks during the entire length of the haul road leading to the Deene Quarry contaminated tip and/or along the internal roads and over ground during reclamation work by the use and maintenance of water sprays to dampen down dust, proper facilities to wash the vehicles (including their wheels), the sheeting of vehicles or other precautions to procure the waste and cover the vehicles and protect the Claimants mothers from contamination.

(g) Failing properly or at all to maintain or decontaminate the all road or internal access roads to the vehicles were allowed to bounce over the site roads causing spillages.

(h) Causing or permitting dozens of lorries to be used to transport substantial quantities of contaminated waste from the Soothills…site… along public roads and the Haul Road (both close to residential and community areas) to the Deene Quarry site… without taking any or any adequate or effective steps to protect the Claimants mothers from the effects of the escape of toxic waste…

(i) Causing or permitting contaminated material to be used in the filling of the toxic ponds and/or be stockpiled within the Deene Quarry site leading to further pollution of the atmosphere.

(j)…

(k) Failing to undertake any or any adequate assessment or management of the potential risks to health caused by the reclamation works despite growing evidence throughout the late 1980s and early 1990s that Deene Quarry, Willowbrook North and Soothills contained high levels of contaminated waste and toxic chemicals… and that unsafe exposure by the reclamation works at the former Steel Works complex had the potential to cause injury to our unborn children during their mother's pregnancy...

(l) Contrary to section 33 (1)(c) of the Environmental Protection Act 1990 disposing of waste in a manner likely to cause pollution of the environment or harm to human health and/or causing or permitting the same and/or contrary to section 34 (1)(b) of the 1990 Act and/or failing to take all measures reasonable in the circumstances to prevent the escape of waste.

(m) Failing properly or effectively to manage the contracts for the reclamation works by:
…(ii) relying upon a small close knit and inexperienced group overall practical purposes had sole effective control over the contracts to the exclusion of other departments and personnel of the Defendant…
(n) Failing to institute … any or any adequate plan or system to avoid causing some personal injury to the Claimants and their mothers during the reclamation works and decontamination of toxic waste at the former Steel Works complex."

From there on, the interested reader can read paragraphs 887 until the end of the judgment.

It is a good judgment and will no doubt be oft-quoted in the years to come.