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On 29 July 2009, High Court Judge, Mr. Justice Akenhead gave judgment for the Claimants’ in this landmark action. These claims have been described as the British “Erin Brokovich”. This is the first time that, following the negligent release of toxic material into the atmosphere, a court has found that this material can be inhaled and ingested by pregnant women and is capable of causing serious birth defects to their children.
Following the Judgment, David Wilby QC, Leading Counsel for the Claimant children said,
“The Defendant has throughout strenuously denied any fault and relied heavily on its expert witnesses to justify its conduct. However, without exception, the Judge preferred the evidence of the expert witnesses called by the Claimants”
The Judge wholly accepted the Claimants’ parents’ account of the conditions in Corby during the works to redevelop the former steelworks site. He described the parents’ as “wholly honest” giving their evidence in a “dignified way”. He decided that millions of tonnes of toxic material was moved around the town in unsheeted lorries often leaving toxic waste on the roads. In contrast, he was generally unimpressed with the Defendant’s former employees who he considered lacked the experience and expertise to undertake such a mammoth reclamation project. He concluded that the Defendant’s motive was to develop and resell the land quickly without thought for the consequences of those living in or visiting Corby.
Des Collins, of Collins Solicitors, acting for the Claimants’ children said,
“Prior to the trial the Council maintained that a thorough investigation had led it to the conclusion that there was no link between the reclamation work and the children’s birth defects. It also maintained that had any convincing evidence been shown that the children had good claims then the Council would have wanted to compensate them appropriately without going to trial. Today that link has been established and the evidence provided. The children now call upon the Council to fulfil their pre-trial promises without delay”.
Ultimately, the court found that any competent local authority operating from 1983 onwards should have been aware of the harmful effect of the toxic dust generated by the reclamation works and taken the basic steps necessary to prevent the dust getting into the atmosphere of Corby. He found that the Defendant failed to do this and its factual and expert evidence to the contrary was simply wrong.
The Claimants are young people and children who have serious disabilities; some have missing or underdeveloped fingers, some have no fingers at all and three have deformities of their feet. These lifelong deformities have had a tremendous impact on them and their families. They have been waiting many years for the opportunity to prove that Corby Borough Council was responsible both for these deformities and the dramatic effect their disabilities has had on them and their families.
They were born to mothers who either lived or regularly visited Corby between 1984 and 1999 during which time Corby Borough Council undertook gargantuan demolition, excavation and redevelopment works on the former Corby steelworks site. This had been one of the largest steel works in Western Europe covering 680 acres and having four blast furnaces and two coke oven complexes. Over the fifty years that the site operated enormous quantities of industrial waste had been deposited on the site.
The way these works were planned and undertaken by the Council was described at the time by Government Agencies, the Council's own Principal Auditor and specialists in the field of remediation, as naïve, cavalier and incompetent. The Council even dismissed the man they appointed to oversee the works. For example the Judge found that,
"the reclamation of Toxic Ponds 5 and 6 was effected by CBC in house personnel who were not qualified or experienced enough to deal with such reclamation. The work was poorly supervised and controlled and contaminated sludges were deposited on haul roads and tracked onto public roads… From 1985-1997, CBC used staff that were unqualified and insufficiently experienced to design, manage and supervise many of the reclamation projects … In my judgment, the Claimants have established that CBC was negligent and in breach of statutory duty…"
The Council knew from the early 1990s that they were uninsured for any liability for contamination arising from these works and that they could be legally liable for any claims as a result of this contamination but failed to inform the people of Corby of these dangers and, until this judgment, have strenuously denied any responsibility for what occurred.
It is also worth noting that the conclusions reached by the study undertaken by Northamptonshire Health Authority in 1999/2000 were heavily criticised by the Judge. Referring to Dr. Patrick Morgan, who prepared the Report, Mr. Justice Akenhead said that he was,
“not a medical statistician, he had no experience in any epidemiological study of the nature which he and his trainee colleague understood … I am unconvinced that it was or was intended to be an independent enquiry as such … it was very surprising that he did not focus on the possible cause and location of the alleged birth defects; if he was concerned to see what risk there was to the people of Corby, it would have been better if he had focussed on the possibility that the reclamation and/or landfill sites were a cause.
The Judge agreed with the evidence given by the Claimants waste management expert, Roger Braithwaite and noted that,
"He [Roger Braithwaite] was obviously appalled at the way in which CBC conducted itself: that feeling clearly manifested itself in the way in which he gave evidence. As is clear from this judgment, he was right to be appalled".
By contrast, the Judge found the evidence of the Defendant's waste management expert. Leslie Heasman, on a number of topics 'difficult to comprehend'. He found that in relation to the BSC licence she was not right and,
"coupled with her somewhat perfunctory views as to the facts and CBC's performance somewhat undermines any confidence one may have in her views where they seriously differ from other experts views. Her principal approach was to analyse the results of the various site investigations over the years for the various parts of the BSC site and list them with a view to the formulation of a view that they did not show sufficient quantities of the type of contaminants which might give rise to the birth defects complained of in this case".
He concluded that, " it would be wrong and misleading in my judgment to base any conclusions on how contaminated the CBC sites were on the information collated by Ms. Heasman…”
In the field of Epidemiology after considering the evidence of Professor Parker for the Claimants and Mr Hurley for the Defendants, the Judge concluded
“Of the two experts, I was most impressed by Professor Parker. Her experience in the particular field with which this case is concerned and her straight forwardness in her reports and giving evidence was striking. I formed the view that Mr Hurley was trying a little too hard to find reasons to support his client’s standpoint.”
In considering the evidence provided to the Court in relation to Air Pollution and Safety Risk Management and, the views and approach of Dr Cox (for the Claimants) and Dr Searle (for the Defendant) Mr Justice Akenhead said
“On balance, I preferred the views and the competence of Dr Cox in this area. He gave his evidence with much greater authority and logic than Dr Searle. His qualifications and experience were more apt than hers. She has made too many errors in some of her factual assumptions.”
In relation to expert evidence in the field of Toxicology and comparing the evidence of Dr Flaks for the Claimants and Dr Searle for the Defendant the Judge said
“I have no hesitation in preferring the evidence of Dr Flaks. He was immeasurably better qualified as a toxicologist; his experience as a pathologist gave him a most useful insight of the effects of toxic substances on the human body. Dr Searle was not and did not profess to be a toxicologist. I strongly felt that her approach was almost entirely dictated by her examination of published papers; she did not and could not effectively approach the opinions, research and regulatory approach set out in those papers from a toxicological viewpoint and background.”
Having heard the evidence provided by Mr Penman on behalf of the Claimants and Dr Emmerson on behalf of the Defendant the Judge concluded that
“Mr Penman was impressive, straightforward and fair; his approach in giving evidence was to listen carefully to the questions and give precise and reasoned answers. Dr Emmerson also gave his evidence in a straightforward and helpful way; although he clearly and honestly believed what he said, much of what he said seemed to be based upon what he thought the literature did not prove; he had a tendency to say that, because there was no clearly established case in the past, that demonstrated or helped to demonstrate that there could be no case in the future. The problem with the literature based approach is that on that basis there may never be advances in science if one follows the view that, because there is no existing literature on a given teratogen causing birth defects, that teratogen simply cannot cause birth defects.”