The Corby toxic waste case was a court case decided by The Hon. Mr. Justice Akenhead at the High Court of Justice, London, on 29 July 2009 in the case of Corby Group Litigation v. Corby Borough Council EWHC 1944 (TCC). The judge found Corby Borough Council liable in negligence, public nuisance and a breach of statutory duty for its reclamation of a Corby Steelworks in the town of Corby, Northamptonshire, between 1985 and 1997.
The landmark decision was historically significant as the first in the world to establish a link between atmospheric toxic waste and birth defects – all previous cases have involved water pollution – and held implications for other council reclamation programmes and the methods of conducting reclamation in England and Wales.
The case has been described as "the British Erin Brockovich".
Background Corby became a steelmaking centre through the establishment of the Stewarts & Lloyds production site in the 1930s, and by 1960 had grown to become one of the most heavily industrialised areas in the Midlands. In 1981 the plant had become unprofitable and owners British Steel Corporation closed the site. By then it was one of the largest steelmaking operations in Western Europe, covering , with four blast furnaces, two coke oven complexes and associated facilities. During its operation a huge quantity of industrial waste, including toxic waste, had been deposited there.
Between 1984 and 1999, Corby Borough Council undertook the demolition, excavation and redevelopment of the site as part of a programme of urban regeneration. This involved transporting the waste through populated areas to a quarry north of the site, utilising up to 200 vehicle movements daily. The toxic waste was carried in open lorries, spilling sludge over the roads and releasing huge amounts of dust into the air.
Subsequently, in the late 1980s and 1990s, the rates of upper-limb differences in babies born in Corby were found to be almost three times higher than those of children born in the surrounding area and ten times higher than a town with a population of 60,000 should expect. In all cases initially referred to the court there were no previous family histories of limb defect.
Action against Corby Borough Council In November 2005, expert evidence was submitted to the High Court in London by the mothers of 30 children who claimed that during their pregnancies they were exposed to contamination from the waste removal operations and who sought to bring a legal action to try to prove a link between the mismanagement of the toxic waste and the birth defects suffered by their children. The evidence presented included reports detailing the higher rate of birth defects, and alleging that exposure to the toxic waste was the likely cause of the children's deformities. They also presented a report written by Roger Braithwaite, an environmental expert instructed by the families, which concluded that the negligent handling of the waste by Corby Borough Council demonstrated "naivety, arrogance, ignorance, incompetence and a possible serious conflict of interest... At this early stage it would seem to me that these... badly polluted lands have never been effectively or comprehensively assessed, properly permitted, regulated, monitored or adequate records maintained... This is environmental negligence on a grand scale."
After reviewing the evidence presented by all parties to the case, an order approved by the then Lord Chief Justice, Lord Phillips of Worth Matravers, set out the terms of the litigation in relation to the council's management and execution of the "land reclamation contracts" between 1985 and 1999 and any duty they had to the families, and permission was given for the parents to pursue the claim against Corby Borough Council as a group litigation involving children born between 1985 and 1999.
Claimants The case to be heard at the High Court in 2009 represented 18 young people who alleged that toxic waste dumped by Corby Borough Council between 1984 and 1999 was the cause of their deformities. All had serious disabilities, including missing or underdeveloped fingers and deformities of their feet. They alleged that their mothers ingested or inhaled the toxic substances that affected the development of their limbs while they were still in the womb. All of their mothers either lived in or regularly visited Corby between 1984 and 1999 when the work was carried out across the town.
The case had taken ten years to reach this point, largely because of the difficulties encountered in obtaining disclosure of information from Corby Borough Council.
2009 hearing When the case reached the High Court on 16 February 2009, involving 18 families and the culmination of a ten-year legal process, evidence was put forward describing how, between 1985 and 1997, there existed a possibility that expectant mothers could have been affected by toxic waste which could either have travelled by air as a consequence of dust, or could have been ingested after landing on vegetables or other items. The area was constantly coated with a thick, red dust, including an open air market selling vegetables and other produce. The vehicles were uncovered, and there was no adherence to procedures such as the wheel washing of the vehicles. David Wilby, QC, leading counsel for the claimants, stated in court that one expert, in trying to convey the appearance of the minute particles hanging over the town at that time, had described it as an "atmospheric soup of toxic materials".
With regard to the allegations that the council demonstrated a conflict of interest, Wilby stated: "Their motive – to a very considerable degree – was money. They looked to the Government and to the redevelopment organisations for the funds to redevelop the sites. They used that money to pay local contractors and the reality was that many of the contracts were awarded to friends or former work colleagues of members of the council."
The presence and locations of the toxic waste were known before work began, having been stored in purpose-built "pits" around the site by British Steel, "in a form which was of no danger to anyone unless they fell in. But the effect of the works undertaken was to remove the majority of these materials and move them a long distance to other areas of Corby, and this involved vast numbers of vehicle movements."
Professor Louise Parker PhD, Professor of Pediatrics and Community Health and Epidemiology at Dalhousie University, Halifax, Nova Scotia, Canada, testified that between 1989 and 1998 children in Corby were 2.5 times more likely to be born with upper limb defects than in the rest of the Kettering Health Authority area, which was statistically "quite significant".
An internal report prepared by Corby Borough Council was uncovered which had raised the prospect of residents being exposed to high levels of zinc, arsenic, boron and nickel as a result of the reclamation works, and a separate report, from the council's auditor, complained of incompetence and negligence by the council and said there was a "cavalier approach" to the operation. The families' counsel submitted that whether Corby Borough Council knew or should have known that the substances being transported around the town could have been hazardous to health was "hardly rocket science".
Further, Wilby submitted that the council committed a criminal act when they allowed the movement of toxic waste without a licence: in 1986 there was no proper permission in place for moving the contaminated waste, only for moving 'inert' waste. Inspectors were not told the true nature of the substances involved and so took only sporadic samples from the site. Wilby said that the council had deliberately ignored the advice from experts to properly analyse the site because it was going to be an expensive task. He said: "They decided they were going to do this 'dig-and-dump'. They thought 'we have got this great deal of land and all this spoil on this site which must be contaminated, we have got to get it off there because we'll never be able to sell it.'" Records demonstrated that in one test which took place in 1983 only five soil samples were collected to represent a area.
Ruling In his ruling, Mr. Justice Akenhead said it was clear that the council had permitted toxic waste to disperse into the atmosphere. He also said that there was a "statistically significant" cluster of birth defects between 1989 and 1999, and that, "toxicologically, there were present on and from the Corby Borough Council sites, over the whole period from 1985 (and possibly before) until 1997, the types of contaminants which could cause the birth defects complained of."
"There was an extended period between 1983 and August 1997 in which Corby Borough Council was extensively negligent in its control and management of the sites which they acquired from British Steel and otherwise used. That negligence and, as from April 1, 1992, breach of statutory duty on the part of CBC permitted and led to the extensive dispersal of contaminated mud and dust over public areas of Corby and into and over private homes, with the result that the contaminants could realistically have caused the types of birth defects of which complaint has been made by the claimants (save in limited respects)... Corby Borough Council is liable in public nuisance, negligence and breach of statutory duty, obviously subject to it being established in later proceedings by individual claimants that their particular conditions were actually caused by the defaults identified in this judgment."
The two youngest claimants, nine-year-old India Harrison and ten-year-old Ashleigh Jane Custance, were unable at that time to proceed with their cases, however, because of the ruling that there were no breaches of duty after August 1997. Their parents indicated that they would appeal this cut-off date.
Reactions The families' lawyer, Des Collins, 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." Collins said of the legal battle: "I've been made out to be a shyster and an ambulance-chaser. The council has stonewalled, obstructed and prevaricated all the way through this. They didn't need to. If they'd ever said to us, 'Look, we're not admitting liability, but we'll co-operate with you to find out what really happened', I wouldn't have minded. Instead, they tried to shut us out and paint us as the baddies... They've tried at every turn to stop us getting at the truth. Now they claim they can't afford to pay. I'm not impressed."
Corby Borough Council's Chief Executive Chris Mallender said: "We are obviously very disappointed and very surprised at the outcome of this trial. Our position has always been that there was no link between the reclamation work that was carried out in Corby in past decades and these children's birth defects. That is still our position." He also said they were "prepared to apologise for mistakes that had been made but could not apologise until a causal link was proved between the works and the defects... We are not yet at the point of saying sorry because nobody yet is responsible."