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Claimants appearing on the register of the Corby Group Litigation v Corby Borough Council, Court of Appeal, 8 May 2008

9 June 2008
The issues

Nuisance – Transco Plc v Stockport MBC – whether damages for personal injury could be recovered in public nuisance.

The facts

Eighteen Claimant’s, born between 1986 and 1999 brought actions against Corby Borough Council. All eighteen were born with deformities of the upper limb. They alleged that their mothers, who lived close to land acquired by Corby Borough Council from British Steel Corporation, were exposed, during the embryonic stage of their pregnancies, to toxic materials in the course of the Council’s reclamation and decontamination programme and that this exposure caused the deformities. The Claimant’s brought their claim in negligence but subsequently amended to introduce allegations of breach of statutory duty under the Environmental Protection Act 1990 (Sections 33 and 34) and Public Nuisance. The Council applied to strike out the claim in Public Nuisance. The Master dismissed the Council’s Application to strike out. The Council was given permission to Appeal by the High Court Judge who, in view of the importance of the pointed issue, ordered that the Appeal should be heard by the Court of Appeal.

The Council’s case was that, whilst it had long been accepted that damages for personal injury were recoverable in public nuisance, that in the light of the decisions of the House of Lords in Hunter v Canary Wharf Ltd and, more recently, Transco v Stockport MBC, the assumption on which those damages had been awarded had been wrong and the cases in which personal injury damages had been awarded for public nuisance had been wrongly decided. The Council relied in particular on the passage in Hunter v Canary Wharf Ltd in which Lord Goff referred to a “developing…school of thought that the appropriate remedy for such claims as these should line our now fully developed law of negligence, and that personal injury claims should be altogether excluded from the domain of nuisance”. In Transco, Lord Hoffman referred to Hunter v Canary Wharf Ltd when he commented that it had been decided in previous cases that “Rilands v Fletcher is a special form of nuisance and Hunter v Canary Wharf Ltd…decided that nuisance was a tort against land. It must, I think, follow that damages for personal injuries are not recoverable under the rule”.

The decision

The Court of Appeal took the view that these did not bear the weight which the Council sought to place on them. They were obitedicta because none of the claims in either case was in public nuisance or included claims for damages for personal injury. The high water mark of the passages was in Lord Goff’s speech, but that came nowhere near to being a clear statement that damages for personal injury should no longer be recoverable in public nuisance. The most that could be said after Hunter v Canary Wharf Ltd was that it had raised the serious possibility that the House of Lords might, in the future, change the law. The passages from Lord Hoffman in Hunter v Canary Wharf Ltd did not purport to say anything about public nuisance. It dealt only with private nuisance. The same comment could be made about the passage from speech of Lord Hoffman in Transco v Stockport MBC with the qualification that Rilands v Fletcher was a special form of private nuisance. Whilst it was open to the House of Lords to change the law, it was not open to the Court of Appeal to do so. Nor was it self evidence that the law should develop in the way in which the Council suggested.

Appeal dismissed.

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