Developing Common Law in Environmental Law Policy

"Common law actions have in recent years proved to be a fertile ground for environmental litigation, although the judiciary have demonstrated a rather lukewarm response to attempts to use torts as a mechanism to control the adverse impacts of pollution on people, property and the wider environment. The courts have shown a preference for specific pollution legislation, such as the Environmental Protection Act 1990, and have shown minimal support for attempts to develop the common law as a means for resolving modern-day environmental problems" (Wolf and Stanley, 2010).

Introduction

Common law is a Judge-declared law, a law which exists and applies to a group on the basis of customs and legal precedents developed over hundreds of years in Britain. Common law is split into two sectors: case law and legislation. Legislation is an act passed by a Parliament or legislature, whereas case law is the law that accumulates as a result of court decisions. There has been much discussion when regarding the issue of common law.

For

The easiest way to deduce whether the courts have shown a lack of support for the development of common law legislation to counter present day people, property and environmental problems is to analyse well known environmental cases, and make judgements to whether more could have been accomplished by the courts. First the difference between must be defined. Rylands v Fletcher [1868] Rylands v Fletcher is one of the most pivotal cases in Tort law, due to the implications it had on future Tort law cases. Rylands possessed a piece of property over mines and veins of coal. However, he didn't own the rights to these. Nearby coal mines were owned by Fletcher. Rylands built a reservoir, unaware of the abandoned mine left underneath, which led to the overflow of water into Fletcher's nearby cave. Fletcher sued Rylands under the tort of trespass, which was deemed inapplicable, as at the time of the case, one-off events weren't classed as trespass, and therefore leading to the case being brought under the tort of nuisance. The arbitrator ruled that Rylands was not guilty of negligence as they had no way of knowing about the shafts under the reservoir. The case was appealed, and ruled in favour of Fletcher, due to Rylands causing mischief by not keeping control of the reservoir. Although he acted without negligence, he was still liable due to the mischief he caused. Due to the reversal in charge, this case became extremely important in regard to Tort law, with some considering Rylands v Fletcher as the fourth Tort. Cambridge Water Co Ltd v Eastern Counties Leather plcA [1994] The most prominent case to consider when agreeing the statement is most probably the Cambridge Water Co Ltd v Eastern Counties Leather plc, which is an important English Tort Law case. It is a case strongly linked to the Rylands v Fletcher case (1868), due to the nature of the case. In 1976, Cambridge Water Co purchased Sawston Mill, which had a borehole from which water could be pumped from. The water was tested at the time, and was declared suitable. Nearby, ECL plc owned a tannery, in which PCE was used within the process. Over the years, the PCE leaked in small quantities and mixed with the groundwater, eventually travelling down, and percolating in the borehole of Sawston Mill, affecting the quality of the water. PCE in water was not a major problem at this, which meant Cambridge Water neglected to test for it. When the European Directive was introduced, the water was tested, and high levels of PCE were found, leading to the shutdown of pumps. CWC then sought damages against ECL, demanding £1 million in damages due to the requirement of finding a new borehole, and covering the cost of the attempted cleanup of the old borehole. CWC stated they were liable under three of the four Torts; nuisance, negligence and Rylands v Fletcher. The case reached the High Court, but the action was dismissed in both nuisance and negligence. The reasoning behind this was that at that time, there was no possible way of ECL of knowing that PCE release were occurring, and could not have foreseen the damage done to the aquifer. The Rylands v Fletcher rule was considered also, which states "the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape" and that with a requirement that this use of land be "non-natural. The Judge Ian Kennedy disagreed that PCE was "non-natural" as it was on an industrial site, rendering the claim under Rylands v Fletcher invalid. CWC appealed to the High Courts, and the decision was reversed, due to the decision being based on the nuisance Tort and the case Ballard v Tomlinson (1885). The argument that ECL was interfering with CWC's right to abstract uncontaminated water, which itself was regarded as an actionable nuisance. Although the appeal was also claimed under Rylands v Fletcher, this was disregarded. CWC was awarded £1 million in damages plus costs. This caused uproar within industry, with fears that many companies would be liable for 'historical contamination'. The case was appealed again, this time to the House of Lords. The judgement of the case made important statements regarding the connection between nuisance and Rylands v Fletcher. Lord Goff considered forseeability (only liability where interference was foreseeable by a person in the defendant's position - belief that damage was unforseeable), non - natural use (storage of substantial chemicals should be considered non-natural - freed up restriction on liability under Rylands v Fletcher) and the courts and environmental protection (referring to common law as environmental protection - aiming to create a statutory regime of liability for environmental damage). The decision was once again reversed in favour of ECL. The main reason for this was the issue of forseeability of the damage suffered by CWC, as it was believed at the time that any spilt solvent would be evaporated. There are major criticisms of the how the case ended. Most environmentalists believe the judgement was restrictive due to the introduction of the requirement of forseeability of the type of damage as a component of the rule in Rylands v Fletcher. Another criticism of the judgement is that only very rarely will it impose liability for pollution cases such as this one. To some, it is believed that not enough impetus was placed on the safety of the environment when regarding the case in general. The reaction from Lord Goff seemed to be one of timidity and uninterest in correcting a wrongdoing. The fact that the judges felt the case should be dealt with by Parliament rather than the courts seem to be a statement that disregards the importance of dealing with pollution to the environment. Fairchild v Glenhaven Funeral Services [2002] The next case of interest is the Fairchild v Glenhaven Funeral Services Ltd. The case involved Mr Fairchild, a subcontractor who worked for a number of different employers, all of which inadvertently exposed him to asbestos. Fairchild then died of Mesothelioma, which resulted in his wife suing the employers under the Tort of negligence. This lead to other people affected with similar situations suing the companies as well. The problem with determining whether the employers were to blame for Mr Fairchild's death was that a single fibre of asbestos can lead to the contraction of Mesothelioma, and was therefore very difficult to determine which employer was completely to blame for the death. Unlike asbestosis, Mesothelioma is a single indivisible disease, therefore the claimant cannot deduce when the asbestos fibre was inhaled leading to the mesothelioma cell becoming malignant. The question was if the defendants had overexposed Mr Fairchild to the asbestos. All employers were equally liable. However, this lead to the question of probability, as it was difficult to determine which employer had exposed Mr Fairchild to more asbestos. Due to this uncertainty, the Court ruled that the claimant was unable to judge if the breaches of duty were a cause to the deceased death. In other words, no damages were paid to Mrs Fairchild. This is another classic case of the Courts washing their hands of a difficult decision. Instead of implementing legislation regarding asbestos, the claimant ended up with nothing. In 2001, the case Edwin Matthews v The Associated Portland Cement Manufacturers (1978) Ltd was brought to court, with the same problem of exposure of asbestos the cause. Mr Matthews had been exposed while working for several contractors, contracted Mesothelioma, and had sued two of the employers. However, unlike Fairchild v Glenhaven, Mr Justice Mitting had an alternate opinion on the case.He concluded: "I can see no substantial difference between saying that what the defendant did materially increased the risk of injury to the claimant, and saying that what the defendants did made a material contribution to the injury. It seems to me wholly artificial to require a claimant to prove which fibre, or fibres, inhaled in whose employment, in precisely what circumstances, caused or set off or contributed to the process by which one or more mesothelial cells became malignant". [i] Mr Justice Mitting The court ruled in favour of Mr Matthews, who received damages from both employers, with the reasoning that even though it could not be determined which employer exposed him to the actual asbestos resulting in the Mesothelioma, it could be deduced that they had both increased the risk of him doing so. This leads to the question: How can two such similar cases end so differently? Hunter v Canary Wharf The Hunter v Canary Wharf Ltd [1997] involved the construction of Canary Wharf Tower. However, the construction of the tower, which was situated near to BBC's primary television transmitter, which affected the reception of local residents television. Also, action was brought against the London Docklands Development Corporation under nuisance also, due to the dust created from the road construction. Over 500 residents filed cases, including Patricia Hunter, against Canary Wharf under the Tort of nuisance, arguing that their television license was now wasted and loss of enjoyment. Originally they filed under negligence too, but the Tort was abandoned soon after. During the case, it was stated that the nuisance in question must be substantial, and that only householders with a right to a property could file anything under the Tort of nuisance. It was Lord Goff's judgement that a building being built in the near vicinity does not apply as nuisance. Initially, the case of Khorasandjian v Bush [1993] was brought up, in order to show that the occupation of a property as a home was enough to constitute action in private nuisance. However, this was rejected in the House of Lords, with the point being that when dealing with private nuisance, the right to sue can only be exercised by those with rights to the land affected (freehold owners, tenants in possession). The question of dust was rejected as personal injury doesn't apply under the Tort of nuisance. Due to the connection made between property rights and nuisance, the development of greater protection of the wider environmental problems has been halted. It was Lord Hope's opinion that not enough had been stated within the case to make a change to the law in regard to a nuisance.

Against

When considering the argument against the original statement, there are also many cases to represent this opinion. The argument will be fought with examples where the Courts place more impetus on protecting the environment than on themselves from a tough decision. Empress Car Company Ltd v National Rivers Authority [1998] The case in question focused on the prosecution of Empress Car Company being sued by the National Rivers Authority, due to the release of red diesel fuel into a river. An oil tank owned by Empress, was surrounded by a protective bund, in case of a spill. However, a pipe leading to a smaller oil tank outside the bund was installed to make oil use easier. However, the oil tap was vandalised by a trespasser, which led to the oil overflowing from the secondary tank, which in turn led to the contamination of a local river. When the case reached the Courts, the defendant tried to place the blame on the trespasser who caused the tap to be open, and had only created the circumstances which led the trespasser entering the grounds. He also argued that the involvement of the trespasser broke the chain of causation. The argument was rejected by Lord Hoffman, who found Empress Car Company Ltd guilty. Another point brought up was the act of prevention of a chance of contamination. It seemed that Empress had a lack of a valid backup plan if a spill occurred. The question of liability was resolved in 1991 when the WRA was created, which states that escapes of pollutants into controlled waters will lead to absolute liability. This is a prime case when deciding whether or not the original statement is true. Empress v National Rivers Authority reflects that proper incite was made into the environmental effect when determining the judgement of the case. It showed that even though the defendant had not directly led to the release of the oil, he was still liable as he didn't take enough care in ensuring that if a spill occurred, it would be dealt with accordingly. Wheeler v Saunders [1994] In the case Wheeler v Saunders [1994], Mr Wheeler was a veterinary surgeon who owned Kingdom Farm House. The farm as owned by J.J Saunders, who used it to raise pigs. Wheeler filed a complaint regarding the smell of the pigs, under the Tort of nuisance. The court agreed with Wheeler, in regard to the smell nuisance affecting his use and enjoyment of the land. The decision was appealed by Saunders, who stated that the allowance of planning permission 'changed the nature of the area', which then would lead to the nuisance Tort being allowable, thus throwing the case out. He referred to the case ofA Gillingham Borough Council v Medway (Chatham) Dock Co Ltd, which allowed the building of a commercial dock. However, the appeal was disregarded, with the reasoning that the case of pig houses would affect the surrounding area more dramatically than it would have regarding the Gillingham case. This decision goes against the original statement as it directly supports the avoidance of the environmental effect of the pig farms. Transco v Stockport The Transco v Stockport Metropolitan Borough Council [2003] involved the collection of a large amount of water under a block of flats, due to an undetected leak. The leak then spread to a nearby embankment, which led to the embankment collapsing. This in turn led to a gas pipe becoming exposed and unsupported, due to the ground underneath the pipe being washed away. The gas company, Transco, then sued the Stockport Council under the Rylands v Fletcher Tort, in regard to the repairs necessary. The Courts judgement was that the council was not liable as the amount of water from the pipe is not considered a dangerous amount. When considering the Rylands case, which showed that excessive amounts of water can lead to risk of damage, the case seemed to have justification. However, Lord Hoffman judged that a burst water pipe does not does not count as something excessive or dangerous. When considering section 209 of the Water Industry Act (1991), which states that although the 'water undertaker' is considered liable when causing damage or loss, they would not incur any liability if the case in question is regarding a specific claimant, such as Public Gas Suppliers, who must insure themselves. Due to this, the Court supported the Council.

Conclusion

In regard to the original statement, there are several cases supporting and disregarding the claim. On one hand, there are several examples (many more than stated) that show a lack of will to combat environmental problems by developing the common law. On the other hand, there are also examples where the courts have supported the use of legislation to help protect the environment. There seems to be a pattern when regarding the cases supporting the original claim. It seems when the case in question offers a dilemma in ethics, the courts are more than willing to sweep it under the rug, rather than finding a better way of dealing with the same kind of problem in the future. When referring to Cambridge Water Co Ltd v Eastern Counties Leather plc, it seemed the Judge was more than happy passing the problem over to Parliament than finding a constructive method of dealing with it correctly. The fact that forseeability was considered more of an issue than the non-natural use of land also represents this opinion.

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