BLG Pollution and Environmental Risk Digest

UK Developments

CASES

The House of Lords has given the reasons for its decision in Fairchild v. Glenhaven Funeral Services & Ors; Matthews v. Associated Portland Cement and Fox v. Spousal & Ors on 20 June (see the Summer 2002 Digest). The case involved workers who had contracted mesothelioma from exposure to asbestos. Each worker had been exposed to asbestos during a series of different employments over 40 years.

As a general rule, a claimant must prove that the defendant's action caused the damage concerned. Mesothelioma can be triggered by a single exposure to one or more asbestos fibres. In the present cases, although a number of the employers had failed to provide adequate protection against exposure to asbestos, the claimants could not prove when they had been exposed to the fibres that caused their mesothelioma.

The House of Lords decided that any injustice to the employers who had not caused the claimants' exposure to the fatal fibres was outweighed by the injustice to the claimants by application of the general rules. Where employers were under a duty to prevent their employees from becoming exposed to the risk of disease from asbestos, it was inconsistent with the policy of the law imposing the duty, and morally wrong, to impose causation requirements which excluded liability.

In deciding in favour of the claimants, the Law Lords stated that their approach does not apply to all cases of exposure to substances where there are difficulties in proving cause and effect. Future cases seeking to develop and build on the judgment will, therefore, have to be decided as and when they arise.

In R. v. London Borough of Hammersmith and Fulham ex parte Burkett, the House of Lords determined that the time limit for commencing judicial review proceedings to challenge a grant of planning permission runs from the date on which planning permission was granted rather than from the date of any earlier resolution or decision in the planning process.

In RJ Tilbury and Sons (Devon) Ltd v. International Oil Pollution Fund 1971 & Ors. (Admlty), the High Court, on 29 May, held that indirect economic losses arising from marine oil pollution are not recoverable under the International Oil Pollution Fund 1971 ("IOPF 1971").

The case arose from oil pollution caused by the grounding of the Sea Empress off Milford Haven in 1996 (see the Spring 1996 Digest). When fishing was banned in the polluted area, fishermen were unable to supply whelks to the claimant for processing, resulting in the claimant losing business.

Under the Merchant Shipping Act 1995, the owner of the vessel that causes "damage" is strictly liable subject to a cap. Any claims for "damage" in excess of the cap are paid by the IOPF 1971.

The court held that the term "damage" includes physical and economic loss. It had no difficulty accepting that the whelk fishermen who had suffered immediate interference with their work from the spill could recover economic loss under the scheme in principle. However, the court decided that the secondary economic loss suffered by the claimant (as a result of the failure of the claimant's suppliers to deliver, rather than as a direct result of interference by the oil) was not sufficiently proximate to fall within the scheme, even if foreseeable.

On 25 July, the Southampton Magistrates Court fined a director of J&W Aggregates (in liquidation) £4,000 with £1,000 costs in relation to two waste-related offences committed by the company. The company had conducted waste management activities on one unlicensed site and had dumped waste at another unlicensed site in breach of section 33(1) of the Environmental Protection Act 1990 ("EPA 1990"). The offences had been committed with the director's consent, connivance or neglect, in breach of section 157(1) of the EPA 1990.

LEGISLATION

The Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 (SI 2002/1689) came into force in the UK on 24 July. The regulations overhaul UK law relating to the classification and labelling of dangerous substances and preparations and require the classification and labelling of dangerous preparations for certain environmental risks. Existing hazard classification for some 500 substances has also been revised and there are new rules on safety data sheets.

Due to chemical suppliers having had very little notice of the regulations coming into force, the Health and Safety Commission has indicated that it will not take action against firms whose labels and safety data sheets do not comply with the new rules for an unspecified transitional period.

The Landfill (England and Wales) Regulations 2002 (SI 2002/1559), which came into force on 15 June, required operators of landfills to submit site conditioning plans by 16 July (see the Summer 2002 Digest). The plans explain how operators will upgrade their sites to meet requirements of the EC...