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Judgments - Sutradhar (FC) (Appellant) v. Natural Environment Research Council (Respondents)

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 33

on appeal from[2004] EWCA Civ 175

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Sutradhar (FC) (Appellant)

v.

Natural Environment Research Council (Respondents)

 

 

Appellate Committee

 

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

Lord Mance

 

 

Counsel

Appellants:

Lord Brennan QC

Andrew Spink QC

Richard Hermer

(Instructed by Leigh Day and Co)

Respondents:

Michael Beloff QC

Charles Pugh

Ben Cooper

(Instructed by Manches LLP)

 

Hearing dates:

22 and 23 May 2006

 

on

WEDNESDAY 5 july 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Sutradhar (FC) (Appellant) v. Natural Environment Research Council (Respondents)

[2006] UKHL 33

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood. For the reasons they give, with which I agree, I would dismiss this appeal.

LORD HOFFMANN

My Lords,

    2.  The question is whether the claimant, who lives in Bangladesh, has a reasonable prospect of success in an action against the Natural Environment Research Council ("NERC") for negligence in issuing a geological report which he says induced the health authorities in Bangladesh not to take steps which would have ensured that his drinking water was not contaminated by arsenic. In consequence he says that he has suffered injury from arsenical poisoning. The Court of Appeal, by a majority (Kennedy and Wall LJJ, Clarke LJ dissenting) and reversing the judge (Simon J) decided that the claimant had no reasonable prospect of satisfying a court that in all the circumstances the NERC owed him a duty of care. It struck out the claim. I agree. In my opinion the claim is hopeless.

Summary judgment

    3.  Under CPR r 24.2 the court has power to give summary judgment against a claimant if it considers that (a) he "has no real prospect of succeeding on the claim…and (b) there is no other compelling reason why the case or issue should be disposed of at a trial." This is a broader power than existed under the old rules, when a claim could be struck out only on the grounds that the pleading disclosed no cause of action (the old demurrer, on which no evidence was admissible) or that the claim was frivolous, vexatious and an abuse of the process of the court. Under CPR r. 24.2 evidence is admissible and witness statements have been submitted by both sides. The new power has been described by Lord Woolf MR (in Swain v Hillman [2001] 1 All ER 91, 92) as salutary:

    "It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success…"

    4.  Lord Woolf went on to say:

    "It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position…Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial."

    5.  These remarks were approved by this House in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1: see Lord Hope of Craighead at pp. 259-260; Lord Hutton at pp. 272-273. In addition, as Lord Millett said in the same case (at p. 294) the "most important principle of all is that justice should be done. But this does not mean justice to the plaintiff alone." It is not just to a defendant to subject him to a lengthy and expensive trial when there is no realistic prospect of success.

    6.  I therefore approach this appeal on the basis that the claimant's allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial. The question is whether, on these assumptions, he has a real prospect of success. For this purpose, I shall first set out the facts as alleged in the statement of claim together with some incontrovertible background material which is either contained in the evidence or common general knowledge. I shall then consider whether as a matter of law there is any prospect of the claimant being able to establish a cause of action.

    The British Geological Survey

    7.  NERC is incorporated by Royal Charter pursuant to section 1(1)(b) and 1(3) of the Science and Technology Act 1965 for the objects of research, instruction, the dissemination of knowledge and the provision of advice relating to the earth sciences and ecology. Its members are appointed by the Secretary of State for Trade and Industry and it is funded by grants from that Department and fees for activities undertaken for other departments, foreign governments or the private sector.

    8.  The British Geological Survey (BGS) was founded in 1835 as a branch of the Ordnance Survey and is now a department of NERC. It has an annual budget of £37m; about half consists of grants from public funds and the rest from paid research. It employs about 800 permanent staff and, among other things, undertakes research in hydrogeology. It has a specialised acquifer properties laboratory at Wallingford.

    The Bangladesh Second Deep Tubewell Project

    9.  The Overseas Development Agency (ODA) was in 1992 a functional wing of the Foreign and Commonwealth Office, charged with providing aid to poor countries. It subsequently became the Overseas Development Administration and in 1997 its functions were taken over by the Department for International Development (DFID). During the period 1983-1992 it was one of the donors funding a project known as the Bangladesh Second Deep Tubewell Project ("DTWII") to increase food production in Bangladesh by assisting the Bangladesh Agricultural Development Corporation ("BADC") to provide 4000 deep tubewells (artesian wells) for irrigation purposes in an area north of Dacca. These were wells of substantial capacity (50-60 litres per second) equipped with a vertical turbine or electrical submersible pump.

    10.  In 1984 the ODA commissioned the BGS to undertake hydrogeological work for the purpose of testing the efficiency of tubewell designs. For this purpose Mr Jeffrey Davies, a geologist specialising in hydrogeology, was employed by the BGS to test 16 well designs. He tested these wells in a relatively small area north-west of Dacca, forming part of the area covered by DTWII, which was chosen for its relatively homogeneous geological character. This project was concluded in 1988.

    11.  In 1990 Mr Davies proposed a programme to check on whether there had been deterioration in the performance of the DTWII tubewells. He proposed first to revisit the 16 test wells sunk by BGS and then, if he found deterioration, to undertake a more detailed study in the following year. Funding for both stages of this programme was approved by ODA.

    The Geological Survey

    12.  Mr Davies made his initial field trip early in 1991 and found no signs of deterioration. He therefore declared a second visit to be unnecessary and proposed instead that the BGS should spend the £40,000 allocated by ODA on a study of the hydrochemistry of the main aquifer units of the whole area covered by the DTWII project. This involved taking water and sediment samples at various places and sending them to the laboratory at Wallingford for chemical analysis. The proposal claimed that, in addition to adding to the general stock of geological knowledge, his project would be useful in two ways. First, it would provide a better understanding of the way in which the DTWII irrigation wells worked. Secondly, following a suggestion from a colleague at the Institute of Acquaculture at Stirling University, he said that the chemical analysis could reveal the presence of trace elements such as aluminium and iron which might be toxic to the fish which (in a project in which the Stirling Institute was involved) rural Bangladeshis were being encouraged to farm. Indeed, such elements might be toxic to humans also. It appears that the Wallingford laboratory has a standard procedure which can test simultaneously for all the major and minor ions and the most common trace elements. As these include aluminium and iron, the information concerning the fish was obtainable at no extra cost.

    13.  Mr Davies did his field work in the first three months of 1992, obtaining groundwater samples from 150 sites in central and north-eastern Bangladesh. Most of the samples were taken from deep tube wells but more than a third came from hand pumped shallow wells which were commonly sunk to provide drinking water. After they had been analysed at Wallingford, he wrote up his report.

    The Report

    The Report was entitled:

    "Short term BGS Pilot Project to Assess the Hydrochemical Character of the Main Aquifer Units of Central and North-eastern Bangladesh and Possible Toxicity of Groundwater to Fish and Humans."

    14.  It began with an Executive Summary. This described the project as a "reconnaissance study" which had the primary aim of producing a reliable body of data that could be used to describe the hydrochemistry of the main aquifer units of central and north-eastern Bangladesh. Such data was required to understand the hydrochemical nature of the main aquifers, the genesis of the alluvial aquifers and the modes of occurrence of "trace elements that may be toxic to biological systems". The "Study Inputs" were the obtaining of samples from 150 widespread sites and submitting them to Wallingford "for the determination of 31 major, minor and trace elements". The report included an atlas showing the distribution of major, minor and trace elements within the study area, which could be used "to indicate the distribution of elements and groundwater properties that can be of benefit or harmful to aspects of life in Bangladesh". The summary gave examples relating to the elements which had been identified: deficient iodine in the water supply in some areas, which could produce goitre, high dissolved iron, manganese and zinc in other areas, which could be harmful to fish, and high phosphate content, which could also harm fish. It recorded that aluminium was not found in quantities likely to be toxic to biological systems. Finally, the summary concluded with a proposal for additional work:

    "This type of rapid reconnaissance survey produces information of relevance not only to hydrogeologists but also to those who are concerned with availability and quality of groundwater for domestic, agricultural, aquaculture and industrial usage. Similar studies undertaken in other parts of Bangladesh could produce comparable results given limited hydrogeological inputs."

    15.  The main body of the report, under the heading "Background", describes the participation of the BGS in DWTII, the fish farming project and the lack of adequate facilities in Bangladesh for obtaining hydrogeological data for the purposes both of designing and siting the most efficient irrigation wells and assessing the suitability of the water for fish. It went on:

    "The above experiences indicate the need to upgrade the groundwater analysis capabilities of institutions in Bangladesh. Improved equipment and staff training are needed urgently … Such a situation must also be of concern to public health workers who, especially during the recently completed 'World Water Decade', actively promoted the installation of thousands of hand-pumped wells as being the best sources of clean, wholesome (ground) water for local domestic use especially at village level.

    To overcome the above difficulties a countrywide baseline study of hydrochemical, hydrogeological and geological factors needs to be undertaken. As a first step this report presents the results of a study of the hydrochemistry of aquifer units within central and northern Bangladesh. Within this area…reasonable geological data are available from deep tubewells installed under the [DWTII] project."

Mr Davies then set out the Study Objectives:

    "This study aimed to acquire sufficient data to permit baseline hydrochemical characterisation of aquifer units recognised and recognition of processes controlling variations in groundwater chemistry within these aquifer systems.

    Such data should reflect and indicate groundwater flow patterns, location of groundwater recharge and discharge areas and delineation of groundwater bodies. Detailed studies will be made of the occurrence and interaction of aluminium, manganese, silica, phosphorus and iron and their effect upon biological systems in the context of fish cultivation, crop irrigation and potable water supply."

    16.  There followed a detailed account of the results, including the maps forming the "atlas" which showed the geographical distribution of traces of each element for which the samples were analysed: dissolved iron, silicon, manganese, phosphorus, aluminium, zinc, bromide, fluoride, iodide etc. It discussed the aluminium content and said that "Aluminium is therefore not considered to be a health risk in the majority of the groundwaters surveyed in this study." There were similar discussions of iron and manganese. In the conclusions, the report said that the hydrochemistry of the aquifers reflected a number of factors which were imperfectly understood. After setting these out, it said:

    "The above factors appear to control the distribution of minor elements some of which can be toxic to aspects of agricultural, health and aquacultural fields of interest. Such reconnaissance hydrochemical surveys will give timely indication of the possible presence and distribution of such toxic substances in groundwater systems in Bangladesh."

    17.  Finally, Appendix 3 set out the raw data of the hydrochemical analyses of Mr Davies's samples, showing the elements for which the samples had been tested and the results.

    18.  Copies of the report were supplied to the ODA, Mott MacDonald Ltd (the main engineering consultant which had been engaged on DWTII), Dacca University, the Bangladesh Agricultural Development Corporation and certain non-governmental organisations involved in water resource managements. These copies were no doubt available to anyone who wanted to read them.

    Arsenic in the drinking water

    19.  At the same time as the modest DWTII programme for sinking 4000 irrigation wells, there was in progress a vast scheme, initially funded by the United Nations Children's Fund (UNICEF), the World Bank and other non-governmental organisations, to install more than 4 million shallow hand pumped tube wells to supply drinking water in rural areas all over the country. The object of this programme was to give the people of Bangladesh access to clean drinking water instead of the contaminated pond and other surface water which had been responsible for gastrointestinal diseases and high infant mortality in the past.

    20.  Unfortunately it appears that in a good many cases the water from these shallow wells, though free of harmful bacteria and other organisms, is contaminated with arsenic. Tests of a limited number of wells have revealed the presence of arsenic at levels considerably higher than the standard measure of safety prescribed by the World Health Organisation. It seems that at least until 1993, and, according to the claimant, considerably later no one thought of testing the tubewell drinking water for arsenic. Mr Peter Ravenscroft, a hydrogeologist who worked for Mott MacDonald Ltd at the relevant time, says in a witness statement made on behalf of the claimant:

    "The majority of investigations into water resources related to quantity, and a high proportion of the practitioners working on water resource or supply projects (whether in Government, aid agencies or as consultants) did not concern themselves about most aspects of water quality. The question of groundwater quality had been very largely (with the exception of coliform bacteria, and to a lesser extent salinity and iron) neglected by both government and aid agencies."

    21.  The BGS did not test their samples for arsenic and there is no mention of arsenic in Mr Davies's report. UNICEF says that standard procedures for testing ground water at the time did not include tests for arsenic. There is considerable controversy over whether the responsible organisations should have been aware of the danger at an earlier stage. Mr Ravenscroft says that when he read the 1992 report he paid no attention to the absence of tests for arsenic and other toxic chemicals because "I was not looking for them". It was only in 1995 that he heard reports of arsenic poisoning in neighbouring West Bengal and drew the conclusion that there might be similar problems in Bangladesh.

    22.  The consequences of the failure to test for arsenic have been most unfortunate: a paper published by the World Health Organisation (Smith, Lingas and Rahman, Contamination of drinking-water by arsenic in Bangladesh: a public health emergency Bulletin of the World Health Organisation 2000, 1093-1103) estimated that, of the 125 million inhabitants of Bangladesh, between 35 million and 77 million are at risk of drinking contaminated water and described the situation as the greatest environmental disaster that had ever happened.

    The claimant

    23.  The claimant is one of the people affected by arsenic in his drinking water. He lives in the Brahmanbaria region to the north-east of Dacca, from which Mr Davies took some of his samples. He is a villager, now nearly 50, who says that until about 1983 he drank pond water. Then a tubewell was sunk in his village and he drank its water instead. In 1991 he developed symptoms associated with arsenical poisoning (melanosis, keratosis, foot ulceration) which, over the years, have become worse.

 
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