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utIlIty WEEK | 18th - 24th July 2014 | 25 Operations & Assets Market view What lies within? Graham Dean examines the impact of water contamination and the potential for a civil class action. He says water companies should have processes in place in advance of any incident. S ociety'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 pub- licity and public outcry. From time to time, there may be civil claims brought by a single claimant alleging water contamination has caused them ill- ness and injury. However, these usually fail because it is difficult to establish causation when there is only one claimant and no evi- dence 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 proceed- ings would probably be subject to a group litigation order to try and ensure the smooth progression of the case by providing direc- tions, establishing a register of claimants, advancing test cases and trying to control costs. A claim cannot succeed unless the claim- ant can show he or she has suffered loss or damage. In the context of water contamina- tion 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 prob- abilities, that their injury was caused by the contamination. This is potentially problem- atic 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 medi- cal and microbiological evidence. There may be a latent effect as a result of the contami- nation and this would also need to be con- sidered 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 lev- els were such to be within permitted levels under the regulations which in turn require stringent systems for treatment and monitor- ing. It is therefore vital that full and accu- rate records are not only maintained but also retained by water companies in case of future claims arising aer 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 dem- onstrate 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 cau- sation challenged. The actual risks to public health are gen- erally very low in the well-regulated water industry. Nevertheless when any contamina- tion 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 man- aged 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 sup- ply as a result of a chemical spill. Graham Dean, partner in the Disease Unit, Weightmans WatEr ICE: UK faces severe water stress Parts of the UK will face severe water stress in future unless the water sector acts now, the Institution of Civil Engineers (ICE) has said. ICE water expert Adrian Johnson warned the water sector has made slow progress on resilience and highlighted the need for metering to increase the perceived value of water and tackle leakage. He called on the recently formed National Water Resources Group to develop a roadmap for change. ElEctrIcIty Scots courts back Shetland windfarm Plans for a 370MW windfarm in Shetland have been backed by the Scottish courts. The 103-turbine Viking Energy project had been put on hold aer the Court of Sessions in Edinburgh decided last year that the Scottish Government ignored EU bird protection rules when giving the develop- ment consent in 2012. However, an appeal against that ruling was upheld when three of the country's leading judges said the con- sent decision was sound. Gas British Gas to boost customer service British Gas has announced plans to hire an extra 300 people to work in customer service. A minimum of 12 school- leavers will be among the new recruits, as part of British Gas's commitment to tackle youth unemployment. Kevin Roxburgh, director of customer services at British Gas, said: "These extra 300 jobs show our continued focus on customer service excellence." 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