Caroline May predicts the end of the foreseeability

EARLIER this year, the House of Lords' decision in the Cambridge Water case introduced a forseeability test into claims made in nuisance and under the rule in Rylands v Fletcher. In future, courts will have to consider whether, at the date the causative action took place, the damage which subsequently occurred (maybe several years later) was reasonably foreseeable.

In environmental pollution cases like that of Cambridge Water, those most concerned are likely to be the defendants' insurers. As pollution exclusion clauses were not introduced into most policies until the 1990s, those who wrote public liability policies before then are acutely aware of their potential exposure to claims arising from gradual pollution stretching back over a period of perhaps 50 years or more.

Increasing public awareness of environmental issues and improved methods of emissions monitoring provide the potential for a growing number of claims over the coming years. The US Superfund experience provides a frightening model for the UK.

For past polluters and their insurers, the foreseeability test provides some protection, recognising as it does that it would be unfair to apply retrospectively 1990s' standards of environmental awareness and protection. The tort of nuisance (and the rule in Rylands v Fletcher) has been modified, reflecting the problems historic pollution claims pose for civil courts.

Scientific expert evidence will undoubtedly have an increasingly important role to play in such litigation in deciding what standards should apply to pollution that may have started decades ago.

So much for the past, what of the future? The EU is considering imposing strict liability for environmental damage. Increasing legislation means that the future of litigation in this area could lie more in the hands of the regulators than private plaintiffs. If this happens, the foreseeability test is, ironically, destined to become a thing of the past.

Caroline May is a commercial litigator with Lawrence Graham, specialising in environmental litigation.