When there has been an environmental incident, it can be difficult to pin down the start and the end of the limitation period for making claims in tort (eg in negligence, nuisance and Rylands v Fletcher).
This is because it is often difficult to establish when the pollution started to occur and when it finished. It can also be hard to establish when the impacts of the pollution first occurred, when they were first noticed, and how long they went on for.
These difficulties create uncertainty, and not just for claimants. Polluters too are hampered when the end point to their potential liability for environmental incidents cannot be predicted with certainty.
The Court of Appeal has recently examined some of these limitation issues in the context of Jalla and others v Shell International Trading & Shipping Company Limited (STASCO) and Shell Nigeria Exploration & Production Company Limited. Its judgment is of relevance to a range of organisations across the construction sector who may be involved in or affected by, directly or indirectly, an environmental incident, including landowners, developers, contractors and their insurers.
On 20th December 2011, there was a leak from some offshore oil infrastructure in Nigeria. The leak only lasted for a few hours. The oil that escaped started to wash up on shore a few days later. The claimants (more than 27,000 individuals and 457 communities who live on the coast of Nigeria) brought a claim based in the torts of negligence, nuisance and Rylands v Fletcher. They alleged that the oil devastated the shoreline, caused serious and extensive damage to land and water supplies and fishing waters. The claimants also alleged that, because it has not been cleaned up properly, the oil continues to cause damage.
A key issue for resolution at an early stage related to limitation. In particular, the proceedings had not been commenced against UK-registered STASCO until April 2018, which was more than six years after the oil washed up on shore and damage was first suffered. The defendants therefore argued that the claim against STASCO failed on limitation grounds because the cause of action accrued more than six years before the case was commenced.
The claimants argued that, at least in so far as common law nuisance was concerned, the limitation period did not end six years after the oil washed up on shore. They argued that because the spill had not been properly remediated, the nuisance was a “continuing nuisance” and a fresh cause of action arose every day that this situation persisted. This interpretation meant that the claimants were at liberty to claim against STASCO for nuisance suffered in the six year period running up to the commencement of proceedings.
The High Court did not accept the claimants view that the claimants were suffering from a “continuing nuisance”. Accordingly, the vast majority of claims were statute barred. The claimants appealed.
Even though this was technically a matter governed by the law of Nigeria, the England and Wales Court of Appeal reviewed all of the key English authorities on the concept of “continuing nuisance”. On 27th January 2021 it held very firmly that what the claimants had suffered and were seeking redress for was not a “continuing nuisance”. It agreed with the High Court that the limitation period in relation to STASCO had already terminated for the great majority of claimants when they commenced their claims.
The Court of Appeal confirmed that a continuing nuisance where a fresh cause of action arises every day is one where the state of affairs which creates the nuisance is allowed to continue, not where the damage is allowed to continue. Here, the state of affairs (i.e. the leak) was quickly terminated and was not allowed to continue.
Points to note on limitation for environmental claims
The Court of Appeal’s decision is a blow for the claimants. Perhaps they will appeal. If they do not, the claimants in limitation difficulties against STASCO will have to drop out (jurisdiction rules mean that if allegations against the UK defendant have fallen away English courts cannot hear their cases). It remains to be seen whether and how the few remaining claimants will take the remaining cases forward.
More generally however, the judgment is relevant to any landowners, developers, contractors or insurers who are at risk of causing or suffering harm due to noise, dust or other air pollution, vibration, or spills into surface/ground water, either from a “one off” event or a continuous state of affairs.
The following points in relation to limitation in these types of environmental case emerge from, or are reinforced by, the Court of Appeal judgment:
- Where damage or harm to a neighbour results from a single or one off event (like the spill of short duration in this case), a neighbour must bring a claim in tort within six years of the date the neighbour first suffered damage or harm. If the neighbour does not do this, the claim is susceptible to challenge on limitation grounds.
- This six year deadline is not extended just because the impacts from the one off event are not remediated and harm and damage therefore continues long after the event took place.
- It does not matter for limitation purposes how much time elapsed between the one-off event and the occurrence of the damage or harm.
- Nuisance may not be the appropriate tort under which to claim for the harm caused by a single or one off event. Negligence or Rylands v Fletcher are more appropriate.
- Where the thing that gave rise to the harm is a state of affairs that was allowed to continue over time rather than a single or one off event, the position is different. As well as negligence and Rylands v Fletcher, the tort of nuisance is relevant here. Such a state of affairs can be said to be a “continuing nuisance”.
- A “continuing nuisance” has the potential to cause damage or harm over an extended period, just like a one off event. However, for limitation purposes, a continuing nuisance is treated differently to a one off event. Where there is a “continuing nuisance”, a fresh cause of action arises every day that the state of affairs persists and causes harm or damage to the neighbour. In other words, every day is treated as a one off event in its own right.
- The effect of this is that a neighbour suffering from an ongoing nuisance can bring a claim long after he/she started to suffer harm and damage, but the claim can only be in respect of damage and harm suffered in the six year period prior to the claim being made. If the neighbour does not claim until more than six years have elapsed since he/she last suffered harm/damage from the continuing nuisance, the claim is susceptible to challenge on limitation grounds.