The Air We Breathe
03/01/2021
A ruling makes a young girl the first person in the UK, and possibly the world, to have air pollution exposure listed as a cause of fatality on her death certificate.
In December 2020, Philip Barlow, the Inner South London Coroner, concluded that the death of nine-year-old Ella Adoo-Kissi-Debrah in February 2013 was caused by acute respiratory failure, severe asthma, and air pollution exposure.
Mr Barlow stated the child was exposed to nitrogen dioxide and particulate matter (PM) pollution in excess of World Health Organization (WHO) guidelines, the principal source of which were traffic emissions. The girl had had several seizures and been taken to hospital almost 30 times in the three years before her death.
The Coroner said the failure to reduce pollution levels to legal limits possibly contributed to the child’s death, as did the failure to provide her mother with information about the potential for air pollution to exacerbate asthma. If this information had been provided, the girl’s mother could have taken steps that might have prevented her daughter’s death.
The ruling makes Ella the first person in the UK, and possibly the world, to have air pollution exposure listed as a cause of fatality on her death certificate. However, although the Coroner’s decision may be new, the battle to regulate air pollution is over 800 years old.
A brief history of UK air pollution regulation
The background to this ruling is complex and goes back as far as the 13th century when the use of coal was banned in London because it was seen as “prejudicial to health”. Concern around air pollution ramped up during the Industrial Revolution, culminating in the Great Smog of 1952 which resulted in at least 4,000 Londoners losing their lives between the 5th and 9th December. A further 8,000 then died over the following weeks and months. Although there had been many legislative attempts to control air pollution, the 1952 disaster highlighted their ineffectiveness.
Four years after the Great Smog, the Clean Air Act 1956 was passed. It introduced ‘smoke-control’ areas and moved domestic heating towards cleaner coals, electricity, and gas. However, smog and related health problems still plagued large cities and several amendments were made, culminating in the Clean Air Act 1993 which seeks to abate air pollution and has helped the UK meet air quality standards in respect of sulphur dioxide and fine particles.
Jumping to the present - the UK has retained a body of EU air pollution Directives to ensure they continued to apply after the transition period ended on 31 December 2020. These include Air Quality Directive 2008 (2008/50/EC), the Industrial Emissions Directive 2010 (2010/75/EU) and the National Emission Ceilings Directive 2016 ((EU) 2016/2284). The body of retained EU law also includes EU Regulations relating to air quality, such as the Fluorinated Greenhouse Gas Regulation 2014 ((EU) 517/2014).
Furthermore, Britain has also entered into several international agreements on air pollution control and air quality, including the 1991 Geneva Protocol in respect of VOCs and the 1999 Gothenburg Protocol to the 1979 UNECE Convention on Long-Range Transboundary Air Pollution.
In addition, Boris Johnson’s government has gone further by setting out a Clean Air Strategy designed to “set an ambitious, long-term target to reduce people’s exposure to PM, which the World Health Organization (WHO) has identified as the most damaging pollutant.” Although the commitments set out in the strategy exceed EU targets, a recent report from the House of Commons Environment, Food and Rural Affairs (EFRA) Committee insists the government must:
“…make legal clean air targets more stringent, including:
- a specific target to reduce levels of fine particulate matter (PM2.5) in line with WHO guidelines
- targets to reduce other pollutants”
One of the concerns cited by the report is that people will be reluctant to return to using public transport once Coronavirus lockdown restrictions are lifted.
It is clear from its commitments to international targets and extensive and timely investment in government reports that the UK is, in theory at least, committed to reducing air pollution and improving air quality. However, 68 years after the Great Smog, a little girl was confirmed to have died from air pollution. The challenge of balancing achieving clean air whilst supporting economic growth is as difficult now as it was in the 14th century. For local authorities, the Coroner’s conclusion concerning Ella Adoo-Kissi-Debrah, that air pollution was directly linked to her tragic death, will be of concern.
Alec Samuels, in his extremely comprehensive article, Is there a Legal Right to Clean Air? set out possible allegations in future air pollution claims:
- “The defendant knew or should have known of the facts and the risks and had or should have had foresight of the consequences.
- Doctors, clinicians, medical health professionals, should all have identified the cause or likely cause of the respiratory illness and warned the parents of the child and suggested possible remedial or protective measures, e.g. going to school at different times, wearing a mask, even moving house.
- Government, defra and MHCLG, could and should have given better, wider and more effective guidance.
- The local authority, through the public health, housing and highway departments, by monitoring could and should have known of the air quality situation and the risks, and responded with appropriate action, such as arranging different times for going to and coming from school, more sensitive traffic regulation, discouraging toxic emissions, medical advice and assistance, housing protection, even assistance with moving house.
- The local housing authority or local social housing association could and should have warned the family and taken protective measures.
- Solicitors acting for the family in conveyancing the freehold or lease could and should have ascertained the local circumstances and warned the family accordingly.
- The vendor or lessor could and should have warned the family or any actual or alleged claims against the owners and occupiers of the property.”
As we can see, the threat of air-pollution based claims is a concern for not only local authorities but also healthcare professionals/NHS Trusts and Solicitors.
Final words
The tragic death of Ella Adoo-Kissi-Debrah has wide implications for local authorities.
As with everything to do with environmental protection, there are no easy solutions to safeguarding our planet. The Coroner’s conclusion in the case of Ella Adoo-Kissi-Debrah is likely to spur central and local government to find strategies to set and meet the ambitious targets needed to improve air quality for everyone. But in the meantime, those working in local government and the healthcare/legal sectors must undertake or update a comprehensive risk assessment in relation to possible future air pollution claims.
