Causation

In another claim involving the Watling Street development at Motherwell, dating back to 2013, 36 individuals brought actions against Lanarkshire Housing Association Ltd alleging personal injury due to contaminants in the soil of the development: Simon Pelosi v. Lanarkshire Housing Association Limited [2024] CSOH 56. The claim was based on the statutory requirement in section 113 of the Housing (Scotland) Act 1987 and section 27 of the Housing (Scotland) Act 2001 that houses will be kept in all respects reasonably fit for human habitation.  There was evidence that the claimants experienced a “strong, unpleasant, sweet and gassy or oil” smell and had various adverse medical symptoms such a headaches, lethargy, inflammation of the eyes and throat, stomach problems, and skin conditions. 

In June 2024 the Outer House of the Court of Session found that the pursuers had failed to prove that the properties were unfit for human habitation or posed a risk to human health due to contamination.  The decision is a useful one at a number of levels, dealing with the need for proof of actual cause of harm and causation, finding that the Part 2A threshold for contamination was not determinative of breach of duty, and stressing the importance of reasoning in expert evidence and the requirement of evidence in order to draw inferences as to causation.   In particular Lord Clark rejected the inference by expert witnesses for the pursuers that there was a likelihood that further hotspots of contamination existed within the site.  It was noted that there was a lack of research, and hence evidence, into what the effects of chronic exposure to low level solvent fumes from contamination might be.  Secondly it was unknown what concentrations of and exposure to any particular contaminant might be. Thirdly there was no medical evidence that the symptoms experienced were as a matter of fact caused by contamination.

The case shows that claims for bodily injury caused by certain types of contaminants will face serious problems of proof and causation, where (unlike, say, asbestos) there is no known medically proven link.  It may be of course that medical science will develop over the years on this point, but at present the hurdles are formidable.

Stephen Tromans, Contaminated Land (Sweet & Maxwell 2018) [14-48].