The law recognises that petrochemicals in their various forms can harm land, water, the atmosphere and people. However, they are an unavoidable aspect of the modern UK economy, which is heavily dependent on motorised transport. It is not realistic to keep such substances away from the places in which people live and work: motorists need easy access to petrol stations.
Recognising the risk of danger to human health and the pollution of natural and built environments, the law requires petrochemicals to be processed, transported and stored in a way that is secure and minimises the likelihood of escape.
Sadly, though, escapes are not uncommon. There can be spillages from road tankers or storage tanks and supply pipes can split, sometimes as a result of insufficient maintenance or inappropriate installation. Escapes can take the form of liquid, or gaseous or vaporous particulate matter.
These problems are not confined to petrol filling stations. Equally dangerous substances can and do escape from refineries, manufacturing and processing operations and domestic premises, notably kerosene-based heating systems.
When these escapes remain within the property of the party responsible for the storage of the substance, the legal consequence is likely to be confined to a requirement (by the Environment Agency and the relevant local authority) to remediate the affected soils and groundwater, and to prevent the further spread of contaminants.
However, significant additional problems arise where the escape extends beyond the premises of the responsible party. The regulatory authorities will require remediation of the contaminated soil, groundwater and watercourses. Local authorities can effect remediation and recover the expenditure from the polluter. Contamination of watercourses may well result in criminal penalties, and civil claims by the water companies that have to clean the watercourses.
The remediation of land and water and the subsequent monitoring of the affected sites can be time-consuming and extremely costly.
Many disputes arise where petrochemicals have escaped from storage facilities beneath petrol filling stations and percolated through the soil and groundwater to neighbouring residential properties. In these circumstances, there is likely to be liability under the law of nuisance and negligence. It is conceivable that the polluter could be liable under the famous 19th century Rylands v Fletcher rule, which imposes strict liability for escapes from land that has been modified in what Lord Cairns described as a “non-natural” way. However, in the 21st century, it is debatable whether the use of land as a petrol filling station is “non natural”.
For what types of losses can affected householders (or their subrogating insurers) seek to recover damages?
The reasonable costs of remediating and monitoring the affected site will be recoverable as damages. This will include the fees of both the specialised engineers required to devise and manage a remediation scheme and the contractors needed to carry out the necessary clearance works. Particular problems can arise if contamination spreads beneath a dwelling house, which may necessitate the removal of floors and internal walls to allow excavation of all contaminated soil. This will inevitably result in significant rebuilding works and, frequently, redecoration throughout the property.
Once contaminated materials have been excavated and cleared, the site must be monitored to ensure that it is free of contaminants or, at least, that the level of contamination has been reduced to a level at which the property is safely habitable. Sometimes this monitoring can continue for years and involve site attendances by engineers, together with the preparation (and subsequent analysis) of data from the monitoring exercise. The monitoring costs will be recoverable as damages.
The fact of a pollution incident – especially one which has caused contamination of a claimant’s soil or groundwater – is likely to result in a claim that the affected property has been blighted and consequently diminished in value. Any such claim will need to demonstrate a causal connection between the pollution incident and the alleged reduction in value. The expert evidence of valuation surveyors will be key here. Blight claims can be significant but need to be considered critically. The mere fact that a property is located close to a filling station is likely to have an adverse impact on its value anyway. Furthermore, a pollution incident may simply be a manifestation of a pre-existing risk, which was partly reflected in the price paid for the property by the claimant and the preincident value of the property.
Many other types of contamination-related losses can also be recovered in damages: for example, alternative accommodation expenses which can be long-term and significant; accommodation for pets; storage for furniture, furnishing and contents; the replacement of contaminated belongings; new floor coverings; and extensive redecoration.
Types of suffering
People affected by petrochemical contamination incidents often have understandable concerns about the effects on their health and that of their children. Some of the chemicals present in petrol and diesel are carcinogenic. Claimants may complain about respiratory problems, either temporary or persistent, and attribute these to the contamination of their land. Medical evidence will be central in such cases. Such claims can result in claimants being awarded damages for the adverse impact on their health.
However, this may be closely related to another issue that frequently arises in this type of dispute. Sometimes claimants do not have any evidence of contamination but simply fear that it has poisoned their land. Anxiety and distress about imagined problems is not actionable (as illustrated by the House of Lords’ recent decision in pleural plaques claims). Fear, however severe, is not a problem for which compensatory damages will be paid.
On the other hand, a claimant may have reason to believe – and evidence to show – that the state of a neighbouring filling station (or refinery, factory or heating oil tank) is such that it threatens to cause significant harm to the claimant (in the form of contamination or additional contamination) if it is not repaired, remedied, modified or dismantled. In those circumstances, the claimant may be able to obtain injunctive relief against the owner and/or operator of the dangerous equipment.
Where contamination has occurred, and the claimant can show that they have suffered inconvenience, distress or anxiety as a result of such proven contamination, a court is likely to award limited damages to reflect that type of suffering.