PRODUCT LIABILITY AND INJURY JULY 2006

PROXIMITY AND POLICY: THE BANGLADESHI ARSENIC CASE

SUTRADHAR V NATURAL ENVIRONMENT RESEARCH COUNCIL
(“NERC”) [2006] UKHL 33
The House of Lords have rejected the appeal of a Bangladeshi citizen in his
group action against the NERC for issuing a geological report which allegedly
induced the Bangladesh health authorities not to take steps which would have
ensured that his drinking water was arsenic-free. The action was declared to
have no reasonable prospect of success.

Background -such duty was breached by the NERC’s claim and give summary judgment in favour
failure to: (i) test for arsenic and (ii) to draw of NERC.
The test case was brought by Mr Sutradhar, attention to the fact that arsenic had not
a resident of the Brahmanbaria district of been tested for, and that the 1992 Report Nevertheless, leave to appeal to the House
Bangladesh. In 1992, the NERC, a UK could not therefore be relied upon as of Lords was granted with the main issue
statutory body, funded the testing of confirming the potability of the waters still to be determined, namely, was the
groundwater in central and north-eastern tested; Court of Appeal correct to conclude that Mr
Bangladesh, measuring hydro-chemical Sutradhar had no real prospect of
make-up and levels of toxicity to fish and -as a result, injury was caused by drinking establishing that a sufficient degree of
humans. Most of the samples taken were arsenic-contaminated water. proximity existed between himself and
transported to the United Kingdom where NERC?
they were analysed at the NERC's own Decision of the Court of Appeal
laboratories. The results of that analysis Decision of the House of Lords
formed the basis of the NERC's Report, At first instance, upon consideration of the
revealing the presence of aluminium, iron, NERC’s application to have the claim struck The House of Lords, unanimously
magnesium and other elements. The out, Mr Sutradhar persuaded the court that dismissed Mr Sutradhar’s appeal. Lord
presence of arsenic in the water was not his claim had a real prospect of success at Hoffman, giving the lead judgment,
tested for, nor detected, nor mentioned, in trial. On appeal, however, the Court of determined Mr Sutradhar’s claim to be
the Report. Appeal (by a 2-1 majority) upheld the “hopeless”. Their Lordships arrived at this
submissions of the NERC that there was an conclusion for two predominant reasons.
Mr Sutradhar subsequently developed insufficient relationship of proximity
symptoms associated with arsenic between NERC and the Bangladeshi public Proximity-control and responsibility
poisoning and issued proceedings against to found a duty of care owed by the NERC
NERC in the English courts, alleging that: to Mr Sutradhar in the preparation and Essentially, the relationship between NERC
production of the 1992 Report. As a result, and the Bangladeshi people was not
-the NERC owed him a duty of care in its it was held that Mr Sutradhar had no real sufficiently proximate so as to establish a
preparation of the 1992 Report; prospect of success in his claim, thus duty of care.
establishing grounds to both strike out his
LONDON LONDON MARKET OFFICE MADRID MANCHESTER MEXICO CITY

As NERC had no connection at all with the Policy

drinking-water project in Bangladesh, nor If you would like any further
had it been asked by any person to Undoubtedly, policy considerations information, please contact either of the
determine the potability of the water, there influenced their Lordships’ judgment. Lord following:
was no “proximate” relationship between Hoffman explicitly cited the overriding Fiona Gill
NERC and the Bangladeshi public. objective of the CPR, including achieving DDI: 020 7293 4255
Accordingly, there was no positive duty for justice for both claimants and defendants E: fgill@dac.co.uk
NERC to test for arsenic simply because it and the saving of time and expense. Mr
had tested for other elements. Lord Sutradhar was part of a group of 700 other Alison McAdams
Hoffman asserted that the fact that a person Bangladeshis who had suffered in some DDI: 020 7293 4450
had expert knowledge did not in itself create way from arsenic contamination of their E: amcadams@dac.co.uk
a duty to the world at large to apply that drinking water. Indeed, the WHO has
knowledge and solve its problems. His estimated that between 28 and 35 million Simon Pearl
Lordship added, “[NERC] can be liable only Bangladeshis drink arsenic contaminated DDI: 020 7293 4041
for the things they did and the statements water, increasing the number of potential E: spearl@dac.co.uk
they made, not for what they did not do.” future litigants significantly. Had the House
Lord Brown agreed, stating that there could of Lords given the green light to Mr
be no duty on the NERC to test for arsenic Sutradhar, the cost to the British taxpayer This publication is not a substitute for
and that their report made it quite clear that would have been enormous. The detailed advice on specific transactions
they had not done so in any event. Claimants were legally aided and their and problems and should not be taken
Lordships were informed that the costs as providing legal advice on any of the
Further, Mr Sutradhar’s submission that it incurred by Mr Sutradhar and other topics discussed.
was arguable that NERC owed a duty to the Bangladeshi residents who wished to bring
population of Bangladesh not to publish a similar actions, had already exceeded
report that implied, by what it omitted to say, £380,000. Further, this amount did not take
LONDON
that there was no arsenic, was promptly into account the costs incurred, also at the 6-8 Bouverie Street
rejected by their Lordships. Again, Lord public expense, by NERC. Clearly to Lord London EC4Y 8DD
T +44 (0)20 7936 2222
Hoffman returned to the argument that Hoffman the scale and cost of a trial was, F +44 (0)20 7936 2020
there existed no proximate relationship as he stated in his judgment,
DX 172
between NERC and the Bangladeshi “overwhelming”. E daclon@dac.co.uk
people to, in the first place, establish a duty
of care. Lord Brown put it that “the essential Lord Brown added that unlike the
touchstones of proximity” were missing. comparatively narrow classes of potential
LONDON MARKET
According to Lord Brown, NERC had no claimants in the other cases such as those 85 Gracechurch Street
“control over” or “responsibility for” the likely to be injured by the collapsing wall, London EC3V 0AA
provision of safe drinking water to the the crashing aeroplane or the inadequate T +44 (0) 20 7936 2222
citizens of Bangladesh, adding, “if ever provision of immediate care for injured F +44 (0) 20 7936 2020
E daclon@dac.co.uk
there were a case which is bound to fall at boxers, the class of potential claimants in
the proximity hurdle surely this is it.” Mr Sutradhar’s case was “the entire
population of Bangladesh”.
In arriving at their decision, their Lordships MANCHESTER
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distinguished the cases of Clay v AJ Crump Conclusion Manchester M2 2FE
(architect held liable for the collapse of wall
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which, with the architect’s approval, This case is a clear indication of the English F +44 (0) 161 839 8309
demolition contractors had left standing) courts’ reluctance to open the floodgates to DX 14363 Manchester
E dacman@dac.co.uk
Perrett v Collins (air safety inspectors held mass litigants from overseas, particularly
liable for crash injuries resulting from their when the cost to the British taxpayer is
failure to consider whether
potentially so great. Further, the decision of
gearbox/propeller was safe) and Watson v MADRID
British Boxing Board of Control (BBBC held the House of Lords clarifies the Paseo de la Castellana, 20
2a Planta
liable for brain injuries of boxer after failing circumstances in which a proximate 28046 Madrid
to provide adequate medical facilities at a relationship is created when establishing a
T +34 91 781 6300
fight). Lord Brown, in the course of his duty of care. One question to be considered F +34 91 576 8669
E dacmadrid@dacspain.com
judgment, stated that NERC did not have now is when a “proximate” relationship will
the same proximate relationship with be established where foreign aid is offered
members of the public as was established to, or work is carried out in third world
in these cases. In contrast to the facts of countries. For the time being, organisations
MEXICO CITY
Av. Insurgentes 950-9
the Sutradhar case, the architect, the air and companies with overseas concerns will Colonia del Valle
safety inspector and the BBBC had “control Delegacion Benito Juarez.
be relieved by this ruling. Codigo Postal 03100
over” and “responsibility for” ensuring Mexico D.F.
respectively a safe wall, a safe aircraft and
T +52 551 107 6056
a safe system for treating injured boxers. F +52 555 687 6849
E dacmexico@dacmexico.com

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