Legal briefing: pollution stands trial

A new inquest into the death of a nine-year-old girl, who lived near one of London’s busiest roads, may lead to the courts recognising air pollution as a cause of death for the first time.

Ella Kissi-Debrah lived in Lewisham, close to the South Circular Road. In the three years prior to her death, she reportedly suffered seizures and was hospitalised with breathing difficulties 27 times. The original coroner’s inquest recorded that she died of “acute respiratory failure”.

However, research in 2018 by Professor Stephen Holgate, an expert in air pollution from the University of Southampton, concluded that Ella’s hospital admissions coincided with high levels of air pollution recorded near her home. In May 2019, the High Court quashed the original verdict and granted a new inquest.

In December 2019, the deputy coroner for the Inner South District of Greater London made a provisional ruling that the new inquest will be an Article 2 inquest, meaning that it will consider evidence as to whether public bodies failed in their duty to protect life, contrary to Article 2 of the European Convention on Human Rights.

The inquest, which is likely to take place in November or December 2020, will address whether air pollution caused or contributed towards Ella’s death, how air pollution levels were monitored, and what steps were taken to reduce the pollution.

It is estimated that up to 40,000 deaths every year result from inhaling particulates and from nitrogen dioxide exposure. If causation were established, Ella’s mother could seek to bring an action for negligence against the Mayor of London, DEFRA, or even the local authority. While there’s no precedent for that, it’s often the case that once the first claim has been brought (whether successful or not), the resultant publicity leads to similar claims being made until eventually someone succeeds.

In terms of action being taken, the government already acknowledges that in areas where the UK is exceeding air quality limits, approximately 80% of roadside nitrogen dioxide concentrations are due to road transport. To address this, it ordered the creation of Clean Air Zones (CAZs) in five cities (Birmingham, Derby, Leeds, Nottingham and Southampton) where vehicles will be required to meet certain emission standards or else pay to travel in the Zone.

Different cities are, however, taking different approaches. Southampton, for example, does not charge vehicles that do not meet the required standards, while no light goods vehicles or private cars will be charged under the CAZ in Leeds.

The ruling of the deputy coroner in the case of Ella Kissi-Debrah shows that the judiciary are increasingly willing to follow the approach of the United Nations and interpret clean air as a human right. But could a lack of uniformity in how English cities implement CAZs undermine their effectiveness?

Rob Biddlecombe is a senior associate at Squire Patton Boggs.

This article is adapted from a piece that first appeared in the February 2020 issue of EHN (login required).