Society’s use of cocaine, according to recent headlines, is now so prevalent that traces of benzoylecgonine (the metabolised form of cocaine) have been found in water supplies, notwithstanding an intensive purification treatment process. While the risk of harm is generally very low, it is an example of how water supplies can be contaminated in new and unusual ways.
Although heavily regulated, if there was a calamitous error in the water treatment safety procedures so that the public water supply became contaminated with a drug or chemical, how would a water company deal with the civil legal consequences of such a scenario?
It is possible that a water company could be dealing with civil actions at the same time as a criminal prosecution for supplying water that was unfit for human consumption and the legal proceedings would attract publicity and public outcry.
From time to time, there may be civil claims brought by a single claimant alleging water contamination has caused them illness and injury. However, these usually fail because it is difficult to establish causation when there is only one claimant and no evidence of a mass incident.
If there are multiple claimants, there is likely to be publicity and solicitors will appeal for further potential claimants. In a mass claimant scenario, any civil proceedings would probably be subject to a group litigation order to try and ensure the smooth progression of the case by providing directions, establishing a register of claimants, advancing test cases and trying to control costs.
A claim cannot succeed unless the claimant can show he or she has suffered loss or damage. In the context of water contamination this requires proof of a compensatable injury, to include illness or disease. The fact of ingestion is not enough. The claimant must also prove, on the balance of probabilities, that their injury was caused by the contamination. This is potentially problematic for claimants because symptoms may be akin to many other constitutional conditions or other causes such as gastric illness from an alternative source such as a virus or food contamination. This will require both medical and microbiological evidence. There may be a latent effect as a result of the contamination and this would also need to be considered although there can be no claim until an injury arises.
To refute the claim, the defendant water company will need to establish either that there was no contamination or that the levels were such to be within permitted levels under the regulations which in turn require stringent systems for treatment and monitoring. It is therefore vital that full and accurate records are not only maintained but also retained by water companies in case of future claims arising after a long period of latency.
It is likely that expert evidence will be key to the defence of any claims. This may include an expert in water safety to demonstrate that the procedures in place were suitable and sufficient, and medical and microbiology evidence to refute causation. Experts should be chosen with care so that their case can be robustly advanced and causation challenged.
The actual risks to public health are generally very low in the well-regulated water industry. Nevertheless when any contamination occurs, the fundamental nature of the requirement for a safe water supply leads to public fear and significant reputational risks for water providers, which need to be managed carefully and considerately.
An example of when things go wrong is the class action brought by residents and businesses of Charleston, West Virginia, due to illness and even alleged cases of cancer following contamination of their water supply as a result of a chemical spill.
Graham Dean, partner in the Disease Unit, Weightmans