Corby Group v Corby Borough Council [2008] EWCA Civ 463 (08 May 2008)

Children born with upper limb deformities alleged their mothers were exposed to toxic materials during Corby Borough Council's land reclamation programme. The Council sought to strike out the public nuisance claim, arguing damages for personal injury cannot be recovered in public nuisance. The Court of Appeal held this was an arguable claim and dismissed the strike-out application.

Facts

Eighteen claimants were born between 1986 and 1999 with deformities of the upper limbs. Corby Borough Council had acquired approximately 680 acres of heavily contaminated land from British Steel Corporation between 1983 and 1989 for reclamation and redevelopment. The claimants alleged their mothers, living near the land, were exposed during pregnancy to toxic materials escaping from the reclamation sites, causing the deformities. The original claim was based on negligence. The claimants later sought to amend their particulars to include claims for breach of statutory duty and public nuisance.

The Public Nuisance Allegations

The claimants alleged the Council allowed toxic material to escape from various sites into the surrounding community and permitted contaminated liquids and toxic sludges to spread onto public highways, endangering public health and causing personal injury.

Issues

The central issue was whether damages for personal injury can be recovered in the tort of public nuisance. The Council argued that, following House of Lords decisions in Hunter v Canary Wharf Limited and Transco plc v Stockport MBC, such damages cannot be recovered, relying on Professor Newark’s article arguing nuisance protects only interests in land, not bodily security.

Judgment

The Court of Appeal dismissed the Council’s appeal. Lord Justice Dyson, delivering the main judgment, held that the two House of Lords decisions did not impliedly reverse the long-established principle that personal injury damages are recoverable in public nuisance. The observations in those cases concerning public nuisance were obiter dicta, as neither case involved public nuisance claims or personal injury claims.

Distinction Between Public and Private Nuisance

The Court emphasised the fundamental differences between public and private nuisance. While private nuisance protects rights in land, public nuisance protects against unlawful acts endangering the life, safety, health, property or comfort of the public. The Court noted that some public nuisances have nothing to do with interference with enjoyment of land.

The Newark Thesis

While acknowledging Professor Newark’s article presented a powerful argument, the Court held it was not open to the Court of Appeal to change the established law. Only the House of Lords could decide whether to adopt Professor Newark’s thesis that personal injury claims should be excluded from nuisance.

Implications

This decision confirms that, as the law currently stands, damages for personal injury remain recoverable in public nuisance claims. The Court left open the possibility that the House of Lords might in future adopt Professor Newark’s reasoning. The judgment provides important clarification on the distinct nature of public and private nuisance and the different rights each tort protects. It also demonstrates that novel legal arguments challenging established principles should not succeed on strike-out applications where the claim has real prospects of success.

Verdict: Appeal dismissed. The claimants were permitted to amend their particulars of claim to add a claim in public nuisance. The Court held that the claim in public nuisance had real prospects of success and it was not open to the Court of Appeal to decide that damages for personal injury are not recoverable in public nuisance.

Source: Corby Group v Corby Borough Council [2008] EWCA Civ 463 (08 May 2008)