Muna Dandan
The recent case of Graham & Graham v Rechem International (believed to have been the longest civil trial in English history), centred on whether the problems suffered by the Grahams’ dairy herd had been caused by a toxin allegedly emitted from the Rechem incinerator in Scotland. More than 80 witnesses of fact were called and 21 experts gave evidence on wide ranging and technical issues such as meteorology, toxicology, incinerator operation and environmental monitoring.
One of the distinguishing features of such environmental pollution cases, is the difficulty a plaintiff has in establishing causation. A plaintiff will argue that all he need show is that the defendant’s activities were capable of causing the harm suffered; a defendant will argue that a plaintiff must prove the problems were caused by that defendant’s activities.
The Grahams submitted that the crucial issue on causation was whether the symptoms exhibited by the Graham herd were indicative of polyhalogenated aromatic hydrocarbon (PHAH) toxicity. It was further submitted that the standard of proof that would be required by the scientific community was far greater than that required to prove the proposition in a civil action and that the Grahams were only required to show on the balance of probabilities that PHAH toxicosis was a reasonable or probable cause of their problems.
The case involved a vast amount of cutting edge scientific evidence. The scientific literature referred to at trial filled 25 lever arch files. The lawyers had to have a detailed understanding of the scientific issues before legal arguments could be made. Furthermore the importance of particular issues changed during the 14-month trial as the lawyers’ understanding of the science increased.
The Grahams argued that it was not necessary to show that the alleged emissions from the incinerator were the sole or dominant cause of damage but it was sufficient to show that they had “materially contributed” to their problems. While this submission was accepted by the judge, he found that the Grahams had failed to establish that Rechem had in any way been responsible for the damage.
