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

Children born with birth defects sued Corby Council, alleging negligent reclamation of contaminated land. The Court of Appeal held that the council could owe a duty of care to unborn children and that damages for personal injury are recoverable in public nuisance.

Facts

This group litigation involved 18 claimants born between 1986 and 1999 with deformities of their upper limbs. They alleged that these birth defects were caused by their mothers’ exposure to toxic materials while they were in the womb. The source of the toxic material was said to be the reclamation and redevelopment of former British Steel sites in Corby, which was undertaken and/or controlled by Corby Borough Council between 1985 and 1997. The claimants’ case was that the Council was negligent in its management and control of the works, leading to the atmospheric dispersal of contaminated dust and other materials over public and residential areas of Corby where their mothers lived and were exposed.

The case came before the Court of Appeal following a trial of preliminary issues, where the judge had struck out the claims in public nuisance and negligence against the Council.

Issues

The Court of Appeal was required to determine the following key legal issues:

1. Whether a claim for damages for personal injury can be brought in public nuisance.
2. Whether the facts alleged by the claimants were capable of amounting to a public nuisance.
3. Whether the Council, a local authority, owed the claimants a duty of care in negligence to prevent them from suffering personal injury in the form of birth defects caused by the reclamation works.

Judgment

The Court of Appeal (Lord Justice May, Lord Justice Laws and Lord Justice Dyson) unanimously allowed the claimants’ appeal, restoring their claims in both public nuisance and negligence. The court held that the trial judge had erred in striking out the claims as they had a real prospect of success.

Public Nuisance

Both Lord Justice Laws and Lord Justice Dyson delivered judgments finding that a claim for personal injury could be sustained under the tort of public nuisance. They distinguished public nuisance from private nuisance, the latter of which protects interests in land. Public nuisance, by contrast, is a crime which becomes a tort if a claimant suffers ‘particular damage’ over and above that suffered by the public in general. The court held that personal injury is a classic form of such particular damage. Lord Justice Dyson stated:</

“I have no doubt that damages for personal injury are recoverable in a case of public nuisance. The scope of the tort of public nuisance is wider than that of private nuisance… A public nuisance is a crime. It only becomes a tort if the claimant has suffered ‘particular damage’. All the authorities show that personal injury constitutes particular damage.”

The court concluded that the alleged widespread dispersal of toxic dust causing personal injury was ‘a paradigm case of a public nuisance’.

Negligence

The court found it was plainly arguable that the Council owed the claimants a duty of care. Lord Justice Dyson, applying the three-stage test from Caparo v Dickman, found that foreseeability of injury was not in dispute. On proximity, he reasoned that the Council was not a mere bystander; by acquiring the land and taking control of the reclamation works, it had assumed a responsibility. The critical factor was that the claim was based on the Council’s positive acts in carrying out the development, not an omission or failure to exercise a statutory power. Lord Justice Dyson reasoned:</

“Where the public authority is the author of the damage, its positive acts are the source of the danger. It is not a mere failure to confer a benefit… In my view, once the defendant embarked on the reclamation of the site, it came under a duty of care to the claimants. The defendant acquired the site and commissioned and directed the works. It was not a mere bystander. It had the power to control and abate the danger which it played a part in creating.”

Therefore, it was fair, just, and reasonable to impose a duty of care on the Council for the manner in which it conducted these operations.

Implications

The decision is of significant importance for several reasons. Firstly, it provides a clear modern authority that damages for personal injury are recoverable in the tort of public nuisance, separating its principles from the land-based restrictions of private nuisance. Secondly, it is a key case on the liability of public authorities in negligence. It affirms that where a public body undertakes positive actions that create a source of danger (as opposed to merely failing to act), it is more likely to be found to owe a duty of care to those who are foreseeably harmed. The case has been influential in subsequent environmental and group litigation claims against both public and corporate bodies involved in large-scale industrial or redevelopment activities.

Verdict: Appeal allowed.

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