Corby Group v Corby Borough Council

Facts

Corby Borough Council carried out the reclamation of land formerly occupied by a steelworks. The claimants, children born with upper limb deformities, alleged that their mothers had been exposed during pregnancy to toxic substances released into the air by the council's reclamation works, causing their birth defects. They brought claims including public nuisance. The council sought to strike out the public nuisance claim on the ground that personal injury damages cannot be recovered in nuisance.

History

The council failed at first instance in its attempt to strike out the public nuisance claim; it appealed.

Issue

Whether a claimant can recover damages for personal injury in public nuisance, in light of the House of Lords' decisions in Hunter v Canary Wharf Ltd [1997] AC 655 and Transco plc v Stockport MBC [2003] UKHL 61 that private nuisance and Rylands v Fletcher are torts protecting interests in land.

Held

Appeal dismissed. A claim for personal injury may be brought in public nuisance, and the public nuisance claim was allowed to proceed.

Ratio

• Public nuisance is an act or omission that endangers the life, health, property or comfort of the public or obstructs the public in the exercise of rights common to all; it is not a tort against land, and a member of the public who suffers particular damage, including personal injury, over and above that suffered by the public generally may recover damages for it.

The judgments

Key reasoning

• There was a consistent line of authority allowing those who suffered personal injury as particular damage from a public nuisance, such as obstructions on the highway, to recover damages.
• Hunter held that only those with an interest in land can sue in private nuisance because that tort protects the use and enjoyment of land; that rationale does not extend to public nuisance, which protects the public's rights and interests generally.
• The remarks in Transco about personal injury were directed to Rylands v Fletcher as a species of private nuisance, and did not deal with public nuisance.
• Since public nuisance includes endangering the life and health of the public, it would be anomalous if a person whose health was actually damaged could not recover.

Where it fits in the module

Corby is a central case on the scope of public nuisance as a tort and its separation from private nuisance after Hunter. It shows the courts treating public nuisance as protecting public rights rather than land, which explains why personal injury is recoverable. Under the 2022 Act topic it raises the question how the civil tort relates to the new statutory offence, and whether the tort's elements should track the criminal definition.

Criticisms

• Allowing personal injury in public nuisance but not in private nuisance or Rylands v Fletcher creates an awkward divergence within the nuisance family, turning recovery on whether a sufficiently large class of the public was affected.
• The special damage requirement is a crude device for filtering claims, and its application to mass exposure cases where many suffer the same harm is unclear.
• Public nuisance may offer strict or near-strict liability for personal injury, outflanking the fault requirement in negligence that the House of Lords sought to protect in Transco.
• The statutory replacement of the criminal offence in 2022 raises doubt about whether the common law definition relied on in Corby still governs the civil tort.