Air pollution and disease claims: Inquest into the death of Ella Kissi-Debrah

On 17 December 2020 the late Ella Kissi-Debrah became the first person in the UK for whom air pollution was listed as a cause of death. This verdict adds to a growing body of material which highlights the risk of adverse health effects from air pollution. We consider that employers and other duty holders need to be cognisant of the potential health risk posed to their employees and others, and undertake appropriate measures to manage that risk. 

Background

Ella Kissi-Debrah, who suffered from asthma, lived near the South Circular Road in Lewisham, South East London.  She sadly died in 2013, aged nine, from severe asthma. Her family are reported to have alleged that her asthma was exacerbated by unlawful levels of air pollution and that her death coincided with one of the worst air pollution surges in her local area.

This inquest is the second into Ella’s death. It was granted after lawyers for the family presented new evidence to the Attorney General that directly linked Ella’s serious form of asthma and her death with the heavy traffic on the South Circular road near her home.

Inquest findings

The Coroner found the cause of Ella’s death to be:

            1A Acute Respiratory Failure

            1B Severe Asthma

            1C Air Pollution

The Coroner found that:

Air Pollution was a significant contributory factor to both the induction and exacerbations of her asthma. During the course of her illness between 2010 and 2013 she was exposed to levels of Nitrogen Dioxide and Particulate Matter in excess of World Health Organization Guidelines. The principle source of her exposure was traffic emissions. During this period there was a recognized failure to reduce the level of N02 to within the limits set by EU and domestic law which possibly contributed to her death

Of further note is that the Coroner found:

Ella’s mother was not given information about the health risk of air pollution and its potential to exacerbate asthma. If she had been given this information she would have taken steps which might have prevented Ella’s death.

Air pollution and illness

It has been widely reported that air pollution can cause and/or contribute towards respiratory (and other) disease. In 2019 Public Health England reported that air pollution was the biggest environmental threat to health in the UK, with between 28,000 and 36,000 deaths a year attributed to long-term exposure[1].

Evidence suggests that high levels of air pollution can cause asthma attacks, strokes and cardiac arrests[2].

Asthma UK states that around 5.4 million people receive treatment for the disease. Deaths from asthma attacks are the highest they have been in the last decade and have increased by more than 33% over the last ten years. In 2017 1,484 people in the UK died from an asthma attack.

Research has found that pollution levels now equal or exceed pre-COVID levels in 80% of the 49 cities and large towns that were analysed (Centre for Cities 2020).

There is evidence that exposure to air pollution increases the severity and the risk of mortality from COVID-19 (an increase of c.11%-15%[3]).

Implications for employers and duty holders

We envisage that Ella’s family will now pursue a civil claim for damages against the State under several potential causes of action including the Human Rights Act/ECHR. Other claimants may also follow suit.

(There have been successful claims in other jurisdictions e.g. Urgenda v Netherlands [2019], where the Supreme Court of the Netherlands found that the state had a duty to protect its citizens from ‘dangerous climate change’ in accordance with its obligations under the ECHR.)

The potential risk facing employers/duty holders (and their insurers) is that employers will have a duty to manage the risk to their employees and others, specifically those at higher risk  i.e. employees who have asthma, COPD, etc. (and potentially long COVID-19) and who are exposed to potentially high levels of air pollution.

This could include delivery drivers, road workers, gardeners, construction workers, municipal workers, teachers, school children. The Coroner has specifically referenced the failure of the State to provide Ella’s mother with information as to the risk of air pollution. This highlights the need, at the very least, for employers/duty holders to inform their employees and others of the risks of high levels of air pollution.

Further, employers/duty holders facing claims for respiratory disease could potentially make a claim for contribution against the State. Contribution claims are likely to require evidence that a claimant’s condition has been contributed to by air pollution and where air pollution levels exceeded relevant standards. This could have particular relevance to housing disrepair claims where asthma is alleged as a result of damp/mould.

The Coroner’s finding does not mean that the test for causation in a civil damages claim has been established. The correct test for proof of causation is likely to be open to argument.

Whilst the verdict emphasises the need for management of risk, it also potentially assists defendants in respect of:

  • Apportionment of the condition to take account of the contribution made by air pollution;
  • Arguing an alternative cause of an exacerbation; and
  • A contribution claim against the state.

[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/795185/Review_of_interventions_to_improve_air_quality.pdf

[2] http://www.erg.kcl.ac.uk/Research/docs/personalised-health-impacts.pdf

[3] Pozzer2020; Wu 2020.


Edward Sainsbury, Partner edward.sainsbury@blmlaw.com
Malcolm Keen, Associate malcolm.keen@blmlaw.com

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