29 July 2009: 'Toxic soup' liability case scores victory

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The Independent Online

A group of young people born with severe deformities have won a landmark legal victory against the council they say is responsible for exposing their mothers to airborne toxic materials during the redevelopment of a former steelworks.

A judge at the High Court in London today ruled that the work carried out by Corby Borough Council on the town's steelworks between 1985 and 1997 had been negligent.

Sixteen of the 18 young people, who are aged between nine and 22, can now seek compensation from the council, which said it was facing a legal bill of up to £6.6m and would have to borrow money to keep itself afloat, as it was not covered by liabilities insurance.

The judge found that there were no breaches of duty after August 1997, so the two youngest children, aged nine and ten, cannot proceed with their cases.

The mothers of those affected either lived or regularly visited Corby while the council was demolishing, excavating and redeveloping the steelworks site and removing the waste to a nearby quarry.

During the trial, one scientist described the particles hanging over the town at the time as an "atmospheric soup of toxic materials".

Yesterday, the judge said the work had been carried out negligently, but the issue of whether the children's defects were caused by the toxic materials will be decided in the future.

The case is thought to be the first group action of this nature since the Thalidomide scandal of the 1970s, which saw about 10,000 babies born with disabilities after their mothers took the drug to control morning sickness.

In his judgment, Mr Justice Akenhead said there had been a "statistically significant" cluster of birth defects between 1989 and 1999, and that toxic contaminants which could have caused the children's conditions were present on the sites controlled by the council.

He said its negligence "led to the extensive dispersal of contaminated mud and dust over public areas of Corby and into and over private homes."

Eight of the mothers, who still live in the Corby area, attended the High Court with their children to witness the ruling. Most of those affected are teenagers, and all have serious disabilities including missing or underdeveloped fingers and deformed feet. Others have eye problems, heart defects and skin conditions.

Speaking outside court, Audrey Barfield, whose 13-year-old son Dylan was born with a deformed right leg and had to have medical treatment every day for the first five years of his life, said: "I am over the moon, absolutely over the moon. We knew that we were right. But we still have a long drawn-out process to go through. We will have to see where we go from here."

Nichola Scott, who was with her son Jordan, said: "It has taken a long time. We knew it was going to be a long haul but I knew we would win." Jordan, 14, added: "I don't care about the money – it's just someone being done for it."

Lisa Atkinson, whose daughter Simone, 20, was born with two deformed hands and had to put up with taunts such as "four-fingered freak" throughout her schooldays, said she hoped the council would "take responsibility and give the children the closure that they need".

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.

"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." He added that the council had put the families through "10 years of anguish", which he said had been "totally unnecessary".

The families are expected to seek compensation individually, a process which is likely to take several years. In each case, the court will need to determine if the council's negligence was the principal cause of the child's deformity.

Even the least affected children are likely to seek compensation of about £100,000 from the council, and the sums sought by the severely disabled could be in the millions. If the council had settled out of court, it would have had to pay each child £125,000.

In determining the amounts, courts will have to take into account the physical and emotional effects of the children's disabilities as well as future losses such as the effect on their employment.

Corby Borough Council, which has already paid £1.9m in court costs and is now facing a further £4.7m claim from the families' solicitor, said it was "disappointed and very surprised" with the result but would not apologise until a causal link between its work and the children's physical deformities had been proved.

Its chief executive Chris Mallender said: "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.

"From day one we have had a great deal of sympathy for the families. We have done everything we could not to expose the families to undue stress. We are not yet at the point of saying sorry because nobody yet is responsible. We can't go round apologising to people for things which we are not necessarily responsible for."

The council is paying the price of a gamble taken by the people who ran it in 1985, who chose not to take out insurance on the dismantling of the steelworks as it was too expensive. Instead, they decided the council should bear the risk itself.

The policy would have paid the legal bills and compensation for the families – now, these expenses will have to be borne through council tax paid by the people of Corby.

After hearing that the council had refused to apologise to the families, Mr

Collins said: "What is even more appalling now is I hear from the council that they, even now, refuse to accept the inevitability of the position they are in.

"They got it wrong. They should simply put their hands up now and admit it. We will have to fight on, but we are quite determined to do that."