Air pollution in the UK: Ella Kissi-Debrah inquest, regulation 28 PFD report & the government’s response

On 20 April 2021 the Assistant Coroner for Inner South London issued a Regulation 28 report to Prevent Future Deaths (PFD) following the Inquest into the death of 9 year-old Ella Kissi-Debrah.  The case attracted significant media attention following the conclusion of the inquest on 16 December 2020 that Ella died from asthma contributed to by exposure to excessive air pollution arising from living close to one of London’s busiest roads. There is a 56 day period for responding to a PFD report and the government responded on the final day of this period, 17 June 2021.

The inquest found that the principal source of Ella’s exposure to airborne particulate matter (PM) was traffic emissions. The Regulation 28 PFD report records that there was no dispute at the inquest that atmospheric air pollution is the cause of many thousands of premature deaths each year in the UK and that delay in reducing the levels of atmospheric air pollution is the cause of avoidable deaths.  The concerns the coroner set out in the Regulation 28 Report were, in essence, that

  1. national limits for particulate matter (PM) are set at a level “far higher” than WHO guidelines
  2. there is a low public awareness of sources of information relating to national and local pollution levels, and
  3. adverse effects of air pollution on health are not being sufficiently communicated to patients by medical and nursing professionals.

The government’s response on 17 June 2021 to the PFD report

The government and other stakeholders were given until 17 June 2021 to respond, and yesterday, as the deadline was due to expire, the government published its response.  DEFRA is the lead department and, in summary, the following are the main elements of the response.

  1. “Immediate action” is to be taken to increase public awareness relating to air pollution, which will include a “comprehensive review” of existing sources of information and aim to assist health professionals in advising patients when poor air quality is forecast.  Additional funds will be made available for the Air Quality Grant scheme, part of which will be dedicated to improving public awareness in local communities. The government intends to have further discussions with broadcasters and social media organisations to identify ways to spread the daily information already provided on air pollution levels by media organisations, for example alongside weather forecasts. There are also plans to consider a possible national SMS alert system. 
  2. A public consultation on new legal targets for PM2.5 and other pollutants will be launched in early 2022, with legislation planned to set new targets by October 2022 [PM2.5 refers to fine particulate matter with a diameter < 2.5 µm (micrometres)]. The government says that it has used the WHO guidelines on PM2.5 “to inform its ambitions in shaping these targets”.  The government aims to target not just pollution “hotspots” but all areas, more widely, and to increase the monitoring network to capture better air quality data nationally.
  3. From a health perspective, in addition to plans to work on longer term campaigns with health charities and improvement of existing sources of information to assist health professionals in advising patients, the additional contribution to the Air Quality Grant scheme is intended to encourage collaboration with local public health bodies in providing guidance to vulnerable groups in relation to health impacts from the pollution and steps which can be taken to minimise exposure.  NHS England and Improvement (NHSEI) will also be tasked with the development of “a more systematic approach to ask the management”, focusing on identification of environmental triggers, among other aims.

Possible implications for liability claims?

The government will be aware of the increasing willingness of private citizens and representative interest groups to bring legal challenges in many jurisdictions relating to public health and environmental matters, whether related to climate change or air pollution, issues which are frequently  deeply intertwined. These developments will no doubt already be on the radar of insurers and in that context, the passages below from the PRA’s April 2019 supervisory statement ‘Enhancing banks’ and insurers’ approaches to managing the financial risks from climate change’ are worth repeating.

Financial risks from climate change arise through two primary channels, or ‘risk factors’: physical and transition. These manifest, for example, as increasing underwriting, reserving, credit, or market risk for firms.

The PRA’s report on the impact of climate change on the UK insurance sector identified a third risk factor – liability risks – arising from parties who have suffered loss or damage from physical or transition risk factors seeking to recover losses from those they hold responsible. The legal risks from climate-related liabilities can be of particular importance to insurance firms given these risks can be transferred through liability protection, such as directors’ and officers’ and professional indemnity insurance.

Any increase in public awareness of air pollution issues generally is bound to focus minds on settings such as workplaces. Further, the profile that a public consultation on PM2.5 and other pollutants is likely to generate will inevitably cause unions and other occupational interest groups to look closely at environmental air quality within workplaces and similar settings. Many employers are seeking to reduce and/or phase out use of diesel engines, for example, but the process is not a swift one, and requires a great deal of capital investment.

Given the comments in the Ella Kissi-Debrah inquest to the effect that the UK has not complied with WHO guidelines in relation to air pollution environmentally, some tricky arguments in relation to causation can be anticipated in any workplace exposure damages claims depending on historic pollution levels in areas in which potential claimants live or through which they have travelled to work on a regular basis.

The issue of air pollution as a liability risk will already be high on insurer and corporate emerging risk indices; it remains to be seen what claims activity may come over the next few years as a result of the stimuli of new public and governmental focus on environmental air quality on the one hand, and on the other the heightened focus within the healthcare sector on harms caused by air pollution and the treatment of those affected by it.

Chris Fletcher, Partner and Occupational Disease, BLM

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