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The Corby Case - Lessons for the Future?

On 29 July this year, the High Court held that birth defects could have been caused to a group of children due to the actions of Corby Borough Council (CBC) whilst remediating a contaminated site.  CBC had purchased the site earlier from British Steel and was regenerating it for new industrial activities. 

As part of the remediation works, which took place between 1983 and 1997, very large quantities of contaminated materials were excavated and removed from site by lorries using public roads.  These lorries were not sheeted to cover the excavated material nor did they go through adequate wheel washing.  This resulted in both excavated material and mud from the site being dropped and spread along roads outside the works.  Substantial amounts of dust were created both from the operations on the site and this dropped material which then spread through the town.

The High Court found that that CBC was guilty of breach of statutory duty, negligence and public nuisance. Each of these is considered in outline below:  

A statutory duty to exercise reasonable care under the Environmental Protection Act 1990 applies to any person who produces, imports, carries, keeps, treats or disposes of ‘controlled waste’ (such as industrial and commercial wastes).  Employers, their consultants and contractors carrying out remediation could be subject to this duty which requires reasonable steps to be taken to ensure the wastes are disposed of safely.  Breaching this duty may be a criminal offence.

Turning to liability in negligence CBC was held to owe a duty of care to the children and their mothers to exercise reasonable skill and care in the execution of the works to avoid injury or foetal damage.  This meant taking care to prevent the dispersion of contaminants from the site via dust.  The High Court found CBC had failed to fulfil this duty and was thus negligent.  The reasons for this failure centred around poor technical and project management.  CBC was also held liable for the negligence of its contractors; in this case due to the dangerous nature of the works.

CBC was also held liable for damages in Public Nuisance for the personal injuries suffered.  A person is guilty of causing a Public Nuisance if he fails to do something required by law or fails to discharge a legal duty and the effect of either of these endangers life, health, property, or even ‘public comfort’. 

CBC has lodged an appeal against these findings.

This case provides a salutary reminder of the wide range of challenges and risks associated with the regeneration of contaminated land.  Some of the key lessons to be learnt are:

• Dig and Dump is seen to be simple and straightforward. It is not and has the potential to increase exposure and increase the associated risks;

• Understand the nature of the contaminants, their toxicological properties and the possible pathways by which they may reach their targets;

• Improve investigations and risk assessments so as to ensure the situation is thoroughly understood and thus reduce potential for future liabilities;

• Know the standards and practices that are in place throughout the world, ignore them at your peril;

• Check insurance policies for both liability and level cover.

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