Alphacell Ltd v Woodward

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Viscount Dilhorne,Lord Pearson,Lord Cross of Chelsea,Lord Salmon
Judgment Date03 May 1972
Judgment citation (vLex)[1972] UKHL J0503-1

[1972] UKHL J0503-1

House of Lords

Lord Wilberforce

Viscount Dilhorne

Lord Pearson

Lord Cross of Chelsea

Lord Salmon

Alphacell Limited
and
Woodward
(on Appeal from a Divisional Court of the Queen's Bench Division)

Upon Report from the Appellate Committee, to whom was referred the Cause Alphacell Limited against Woodward (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel as well on Tuesday the 14th, as on Wednesday the 15th, days of March last, upon the Petition and Appeal of Alphacell Limited, of Mount Sion Works, Radcliffe in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 2d of April 1971, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of R. E. Woodward, Solicitor, Clerk and Chief Executive Officer of the Mersey and Weaver River Authority, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of the High Court of Justice, of the 2d day of April 1971, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Wilberforce

My Lords,

1

The enactment under which the Appellants have been convicted is the Rivers (Prevention of Pollution) Act, 1951. The relevant words are "if he causes or knowingly permits to enter a stream any poisonous, noxious or "polluting matter".

2

The subsection evidently contemplates two things— causing, which must involve some active operation or chain of operations involving as the result the pollution of the stream; knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge. I see no reason either for reading back the word "knowingly" into the first limb, or for reading the first limb as, by deliberate contrast, hitting something which is unaccompanied by knowledge. The first limb involves causing and this is what has to be interpreted.

3

In my opinion, "causing" here must be given a commonsense meaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be difficulties where acts of third persons or natural forces are concerned but I find the present case comparatively simple. The Appellants abstract water, pass it through their works where it becomes polluted, conduct it to a settling tank communicating directly with the stream, into which the polluted water will inevitably overflow if the level rises over the overflow point. They plan, however, to recycle the water by pumping it back from the settling tank into their works: if the pumps work properly this will happen and the level in the tank will remain below the overflow point. It did not happen on the relevant occasion due to some failure in the pumps.

4

In my opinion, this is a clear case of causing the polluted water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the Appellants and I fail to see how a defect in one stage of it, even if we must assume that this happened without their negligence, can enable them to say they did not cause the pollution. In my opinion, complication of this case by infusion of the concept of mens rea, and its exceptions, is unnecessary and undesirable. The section is clear, its application plain. I agree with the majority of the Divisional Court, who upheld the conviction, except that rather than say that the actions of the Appellants were a cause of the pollution I think it more accurate to say that the Appellants caused the polluting matter to enter the stream.

5

There are two previous decisions which call for brief comment. The first is Moses v. The Midland Railway Company [1915] 113 L.T. 451 which was decided upon similar terminology in section 5 of the Salmon Fishery Act, 1861. The cause of the escape of the polluting creosote was a defective tap in the tank wagon which did not belong to the Railway Company but to a private owner. The conclusion that the Railway Company had not caused it to flow was, I should have thought, inevitable. The second is Impress (Worcester) Ltd. v. Rees [1971] 2 All E.R. 357. The Appellants had placed a fuel oil tank near, though not adjacent, to the River Severn. The oil escaped through a valve which was not kept locked. The Divisional Court found that it was an inevitable conclusion of fact that some unauthorised person had opened the valve for purposes unconnected with the Appellant's business. They held that the opening of the valve was of so powerful a nature that the conduct of the Appellant was not a cause of the flow of oil. I do not desire to question this conclusion, but it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place. The answer to such questions is one of degree and depends upon a proper attribution of responsibility for the flow of the polluting matter.

6

The actual question submitted to this House under the Administration of Justice Act, 1961, section 1(2) is:

"Whether the offence of causing polluting matter to enter a stream contrary to section 2 of the Rivers (Prevention of Pollution) Act 1951 can be committed by a person who has no knowledge of the fact that polluting matter is entering the stream and has not been negligent in any relevant respect."

7

The answer to this, I suggest, should be yes, it being understood that the test is whether the person concerned caused or knowingly permitted the poisonous, noxious or polluting matter to enter the stream. As, in my opinion, the Appellants did so cause, I would dismiss the appeal.

Viscount Dilhorne

My Lords,

8

The Appellants, Alphacell Ltd., were convicted by the magistrates at Radcliffe in Lancashire on an information that they had caused polluting matter to enter the River Irwell contrary to section 2(1) of the Rivers (Prevention of Pollution) Act, 1951.

9

Section 2(1) so far as material, reads as follows:

"Subject to this Act, a person commits an offence punishable under this section—

( a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter …"

10

At their Mount Sion works, which are on the bank of the river, the Appellants treated manilla fibres as part of the process of manufacturing paper. The fibres had to be boiled and the water in which they were boiled became seriously polluted. It was drained into tanks from which it was removed by road tankers. There was also a washing process and the water used in the washing process was drained into two settling tanks situated on the edge of the river. One settling tank was higher than the other and the overflow from the higher tank went into the lower. In a shed above the lower tank there were two pumps with pipes extending downwards into the liquid in the lower tank, through which the water was sucked and pumped back into a reservoir from which it could be taken and, after filtration, used again.

11

If the pumps worked properly, there should have been no overflow from the lower tank, but if that tank did overflow, the liquid flowing from it went straight into a channel, provided for the purpose, which led straight into the river. So if the pumps for some reason failed to operate properly, the system instituted by the Appellants made provision for any overflow to go straight into the river.

12

One of the two pumps worked automatically, coming into operation when the water in the lower tank reached a certain level and switching itself off when the level dropped 3 feet 3 inches below the level at which it would overflow into the river. The other pump was manually operated.

13

Evidence was given by a consultant of the paper trade, a Mr. Evans, who had been concerned with the planning of the circulation of the water. He said that one pump was sufficient to keep the liquid from overflowing if nothing went wrong, and that the second pump was there in case anything went wrong with the first.

14

At 4.30 p.m. on Tuesday the 25th November, 1969, an Assistant Inspector employed by the Mersey and Weaver River Authority saw that liquid was overflowing from the lower tank into the river at the rate, he estimated, of 250 gallons an hour. Both pumps were then working. He took samples, analysis of which showed that the liquid being discharged had a biological oxygen demand of 160 milligrammes per litre. The River Authority only permitted the discharge of an effluent with a biological oxygen demand not exceeding 20 milligrammes per litre.

15

Each of the pipes which carried the water to the pumps was fitted with a rose to prevent foreign matter being sucked into the pump. The holes in each rose were ¾ of an inch in diameter.

16

Mr. Atkinson, a foreman employed by the Appellants, testified that on the 25th November he had inspected the tanks at 8.15 a.m. and that one pump was operating then. He...

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