More on the Corby case...

This is the biggest case of toxic poisoning in the UK since thalidomide.
-Danielle Holliday, from Messrs Collins Solicitors, which handled the Corby case.

I found that there are quite a number of other stories celebrating the Corby victory. This story is worth reading as the decision could have far reaching impact.

Here is a run down of some of the stories and the angle they are taking on this issue.

1. UK Telegraph, 30th July 2009: Corby birth defect: Ten-year struggle ends in victory that echoes Erin Brockovich: Draws parellels with Erin Brockovitch and the thalidomide incident.

2. Guardian, 29th July 2009: 'I can't do some of the things other kids are doing. I can't run': Focuses on the tragedy of the deformity suffered by the children and the vindication this judgment brought them.

3. Independent, 29th July 2009: Cuts or rises: toxic claim 'will hit council tax payers': Plays out the council's side of the story, with the council trying to tell members of the public that their taxes will go to compensate the plaintiffs. Quotable quote: "All the evidence suggests it would have been cheaper to settle earlier than to pursue and defend the case. We have run up substantial legal costs. We've run up legal costs so far of £1.9 million - that is money we have already paid and budgeted."

4. New Statesman, 30th July 2009: Landmark ruling in birth defects case: Focuses on the legal aspects of the matter as a "landmark ruling", calling the case "the first case of its kind since the thalidomide scandal".

5. LocalGov, 30th July 2009: Corby lawyers urge rethink after contamination ruling: Tries to show the council's argument that this case could open the floodgates for other similar claims, against other councils carrying out reclamation works. The council's lawyers issued this statement: "This is a significant concern because the standard of care has been drawn very highly, and could cause a rethink of the way that reclamation is carried out in the UK." It sounds like they learned their lesson and have accepted the judgment. Yet they are considering appealing the decision.

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.

"I will regret this forever"

TV2 aired Notting Hill on Sunday, the 5th of July 2009. That marvellous movie starring both Julia Roberts and Hugh Grant was somewhat of a fantasy, and still very charming despite the years having gone by. It was a classic of a romance-comedy. While watching it, I was struck by a part of the dialogue, which occurs right after actress Anna Scott (Julia Roberts) discovers that the press are right outside the door, and what was a safe haven for her had turned into a huge embarassment. The lines are here:

ANNA
And remember -- Spike owes you an
expensive dinner. Or holiday --
depending if he's got the brains to get
the going rate on betrayal.

WILLIAM
That's not true. And wait a minute...
this is crazy behavior. Can't we just
laugh about this? Seriously -- in the
huge sweep of things, this stuff
doesn't matter.

SPIKE
What he's going to say next is -- there
are people starving in the Sudan.

WILLIAM
Well, there are. And we don't need to
go anywhere near that far. My best
friend slipped -- she slipped down-
stairs, cracked her back and she's in a
wheelchair for the rest of her life.
All I'm asking for is a normal amount
of perspective.

ANNA
You're right: of course, you're right.
It's just that I've dealt with this
garbage for ten years now -- you've had
it for ten minutes. Our perspectives
are different.

WILLIAM
I mean -- today's newspapers will be
lining tomorrow's waste paper bins.

ANNA
Excuse me?

WILLIAM
Well, you know -- it's just one day.
Today's papers will all have been
thrown away tomorrow.

ANNA
You really don't get it. This story
gets filed. Every time anyone writes
anything about me -- they'll dig up
these photos. Newspapers last forever.
I'll regret this forever.

The script for the movie can be viewed at awesomefilm.com.

******************

But the movie doesn't end on that sour, dour note. There are twists and turns. Julia Robert's character finally forgives Hugh Grant's character enough to want to commence a relationship with him. He, being a bit of a coward, backs out of it. Later, Hugh Grant's character realises what a bum he has been and makes an all-out effort to get to her before she flies back to the US of A. He manages to get to her press conference, late. This was definitely the best part of the movie. The script extract:

QUESTIONER 3
Last time you were here, there were some
fairly graphic photographs of you and a
young English guy -- so what happened
there?

ANNA
He was just a friend -- I think we're
still friends.

JEREMY
Yes, the gentleman in the pink shirt.

He is pointing straight at William, who has his hand up.

WILLIAM
Yes -- Miss Scott -- are there any
circumstances in which you two might be
more than just friends?

Anna sees who it is asking.

ANNA
I hoped there might be -- but no, I'm
assured there aren't.

WILLIAM
And what would you say...

JEREMY
No, it's just one question per person.

ANNA
No, let him... ask away. You were
saying?

WILLIAM
Yes, I just wondered whether if it
turned out that this... person...

OTHER JOURNALIST
(to William)
His name is Thacker.

WILLIAM
Thanks. I just wondered if Mr. Thacker
realized he'd been a daft prick and got
down on his knees and begged you to
reconsider, whether you would...
reconsider.

We cut to Max, Bella, Bernie and Honey, all watching. Then back
to Anna.

ANNA
Yes, I'm pretty sure I would.

WILLIAM
That's very good news. The readers of
'Horse and Hound' will be absolutely
delighted.

Anna whispers something to Jeremy.

JEREMY
Dominic -- if you'd like to ask your
question again?

QUESTIONER 1
Yes -- Anna -- how long are you
intending to stay here in Britain?

Pause. Anna looks up at William. He nods.

ANNA
Indefinitely.

1 Malaysia and the new Malaysian equation

Malaysia's sixth Prime Minister, Dato Seri Najib Tun Abdul Razak, has taken the helm of the nation and has just completed the first 100 days of his ascent to office. Along with it, he has promoted the slogan, "1 Malaysia", in order to unite the variegated communities in this nation and encourage nation building. The slogan has, however, been quite ambiguous in its interpretation, no thanks to the vagueness of what it means. It has not been spelt out in full. What do my fellow Malaysians make of this slogan? What does it mean? Malaysia has always been one and the same. Yet we all have our own views of what Malaysia means. East and West Malaysia? Rich and poor Malaysia? Privileged and unprivileged Malaysia? Modern and backward Malaysia? Malay and non-Malay Malaysia? Bumiputra and non-Bumiputra Malaysia? Barisan Nasional and Pakatan Rakyat Malaysia? What does it mean?

As a nation which aspires to walk together to mutual prosperity in the new millenium, we have faced setback after setback since the turn of the millenium. We now approach the end of the first decade of the millenium: what can we do to achieve unity amongst our children, and grandchildren? My personal opinion is that efforts should be made to recognise, and incorporate, the various communities. They who are backward, no matter where they are, no matter what race and no matter what religion, should be given equal opportunity to progress. If a prime minister is sincere, he must give equal opportunity to all people, and not institutionalize the segregation and victimization of minority communities. Indeed an equation for a multi-racial country can be considered fair only if the majority consider it acceptable and fair to switch places with the minority. If it were otherwise, all talk by representatives of the majority is only word of mouth, and unrepresentative of anything significant.

What do you think?

**************

Further reading:

• Our Prime Minister's blog at www.1Malaysia.com.my (English section)
• NST: They criticise 1Malaysia but, horrors, they want Najib to succeed (25-6-2009) Extract: "The ‘People First, Performance Now’ enunciation last week in the Dewan Rakyat was the first time he pitched it inside the House before the meanest horde of cynical sceptics from PKR, DAP and Pas, whose MPs’ hearts may agree with the basic precepts of 1Malaysia but predictably, whose political heads went with beastly instincts - rip the concept at its infancy before it can grow some legs."
• The Malaysian Insider: The malaise of 1Malaysia (24-6-2009) Extract: "But what about the rest of the country? What about the Chinese, Indians, Kadazandusuns, Dayaks, Sikhs, Eurasians and others? What role will they play in a Malay unity government? Who will look after the interests of non-Malays? Will crumbs be tossed their way?"
• Khairy Jamaluddin: 1Malaysia vs 3Malaysia (3-7-2009) Extract: "In BN, there clearly exists a working understanding between the component parties - this system has been the foundation of our leadership and the harmony within the coalition."
• Bernama: Islam Hadhari has similarity to 1Malaysia (30-6-2009) Extract: "Minister in the Prime Minister's Department Maj-Gen (R) Datuk Jamil Khir Baharom said the Opposition claim that Islam Hadhari had failed and not linked to 1Malaysia was untrue."
• Bernama: Najib confident BN, UMNO and Malaysia will support liberalisation measures (3-7-2009) Extract: "Times have changed, old instruments have not really worked, not delivered. But this whole notion of having a fair and equitable society is a dream and I think all Malaysians share that dream. It is just that it must be fair in the way we implement it, we must ensure that no ethnic group is marginalised and disincentivised as well. So, within the premise of what I have mentioned, I came up with the tag line of 1Malaysia, and I am interpreting 1Malaysia of specific policies but we must work together as one people, one nation and above all one dream."

I sincerely hope that the implementation of the 1Malaysia policy will be equitable to all. Again, I would like to say that an equation will be considered fair to all concerned if all players in the equation do not mind changing places. Although it is a hypothetical test, it will show you whether a certain party is only talking nonsense or trying to make a genuine effort.

On Entrepreneurship and Lawyers -- and Contractors

I stumbled across this article today:

Lawyer-Turned-Entrepreneur: How the Collision of Diverse Careers can Blend into Success

It was a great article.

Here is an extract:

There are certain basic characteristics that are innate in both lawyers and entrepreneurs. For example, both careers require energy, initiative, motivation, creativity, and the ability to juggle multiple tasks, deal with time pressures, and pick up new information quickly. Both careers also require an objective approach to problems, such as focusing on performance and accomplishment rather than personal feelings.

Despite the similarities, lawyers and entrepreneurs can be very different. Three characteristics distinguish lawyers-turned-entrepreneurs from their peers who remained in the legal sector: their risk tolerance, their optimism, and their leadership abilities. Most lawyers are skilled at risk analysis and avoidance. There are exceptions, such as personal injury or product liability lawyers that often take enormous risks in hopes of yielding a huge reward; however, most people choose the legal field because of its predictability. The lawyers that separate themselves from the majority are the ones that have an innate attraction to challenge. It is this need for challenge that makes the lawyer-turned-entrepreneur more risk tolerant. Put differently, it often seems as though entrepreneurs are taking high risks, but in actuality they have assessed the risks thoroughly, and this assessment is a function of entrepreneurship that lawyers are more than equipped to handle.

We can't help peering into someone else's windows to find out about their lives. Curiosity got the cat, and it sometimes gets us, too. In this post I rant about being a lawyer, and wonder whether I should see myself as a contractor.