Air pollution and air quality will become significant exposures for organisations

Following the death of a young girl in which air pollution was a material contributor, the issue will attract increasing media attention and speculative litigation.

In the coming year, insurers and their policyholders will need to ensure they have considered the potential exposures presented by air pollution. There have been recent high-profile judicial findings on the issue of air pollution, as the detrimental effects become increasingly apparent.

An inquest into the death of Ella Kissi-Debrah in 2020 found that air pollution from the South Circular Road in London had made a material contribution to her death. The coroner requested that national and local government properly publicise air pollution levels. In 2021, the High Court demonstrated in Richards, R (On the Application Of) v The Environment Agency, that it was prepared to hold the Environment Agency to account for the consequences of air pollution caused by a private business.

The Richards case went further than the Kissi-Debrah inquest by forcing the Environment Agency, a state regulator, to act. Mr Justice Fordham held that in the scope of industrial activities, there was an overlap in the positive obligations on the part of the state in respect of Article 2 and Article 8 of the European Convention on Human Rights.

However, the question of direct common law liability for injuries and damage caused by exposure to unsafe levels of air pollution has yet to be determined.  

In the hypothetical scenario of a child being injured by attendance at a school located in an area of severe pollution, who could be pursued? It is not particularly easy to sue the Government or other authorities in these circumstances. What of an office employee who becomes ill due to their exposure whilst in the workplace?

Currently, there are clear difficulties for claimants in establishing the identity of the polluter and the nexus of foreseeability.

Nonetheless, those claimants with illnesses evidently identifiable as caused by occupational or environmental exposure will be extremely interested to explore all options of securing damages beyond the conventional allegations involved in an employer or public liability claim. 

When faced by claimants who have been injured or have become ill due to exposure to unsafe levels of air pollution, there may be an anxiety on the part of the judiciary to provide a positive outcome for them. This is arguably a public policy issue requiring some judicial innovation, and the possibility of a fluid application of the existing test for the attribution of a duty of care.

In 2022, the issue of air pollution and illnesses caused will continue to generate headlines, but it is just as likely that litigation in this area will be as important.

View all our Insurance 2022 Predictions here