Empress Car Company (Abertillery) Ltd v National Rivers Authority (Now, the Environment Agency)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,MR JUSTICE BUTTERFIELD,I |
| Judgment Date | 11 December 1996 |
| Judgment citation (vLex) | [1996] EWHC J1211-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No: CO 961/96 |
| Date | 11 December 1996 |
[1996] EWHC J1211-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London WC2
Lord Justice Schiemann
Mr Justice Butterfield
No: CO 961/96
MR F PHILPOT (Instructed by Messrs Bartlett & Beynon, 325–329 Stratford Road, Shirley B90 3BL) appeared on behalf of the APPELLANT
MR M BAILEY (Instructed by The Environment Agency, Rivers House, St. Melons, Business Park, St. Melons, Cardiff. DX 121376 St. Melons 2) appeared on behalf of the RESPONDENT
Wednesday 11th December 1996
In July 1995 the National Rivers Authority preferred an information against the Appellant company. It alleged an offence against Section 85(1) of the Water Resources Act 1991. That sub-section provides:—
"A person contravenes this Section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters".
The Appellant was convicted by the Justices, appealed to the Crown Court and was convicted by the Crown Court. It now appeals to this court by way of case stated.
The essential question in the case is whether on the facts as found by the Crown Court that court was entitled to come to the conclusion that the Appellant had "caused" the polluting matter to enter controlled waters. There was no dispute that the matter was polluting or that the waters were controlled. The Appellant submitted before the courts below and before us that it did not cause this to happen and that someone else must have done.
Phrases used in judgments in the case law as to what can constitute "causing" polluting matter to enter controlled waters are not easy to reconcile. It appears to be common ground that if someone fills a tank with pollutant and the pollutant escapes into a river because the tank is split in two by lightning he will be absolved of having caused the escape. On the other hand if, as in R v CPC(UK) Ltd (Unreported, Court of Appeal, Criminal Division (Evans LJ, Popplewell and Ebsworth JJ, 15.7.1994), the pollutant escapes into the river because of a latent defect in a pipe for which the defendant bears no responsibility, he will not be absolved of having caused the escape. The wording of the Act does not seem to me to require a different answer to those two situations and no policy reasons for different answers have been advanced. We have been invited by the parties to clarify the law. For reasons which appear towards the end of this judgment, for my part, I propose to decline this invitation. As it appears to me it is perfectly clear from case law binding on this court, in particular that Court of Appeal case, that on the facts of the present case the Crown Court was entitled to find the appellants guilty of the offence charged.
The Crown Court found the following facts:—
(a) The Appellant at some unknown time installed or adopted a large diesel tank containing red diesel. The outlet of that tank was governed by a simple tap which was not in any way locked. The Appellant's use of that tank at the material time had involved the use of an extension pipe running into a smaller drum in order that smaller quantities could be taken up more easily than those which would be delivered by a fairly large scale tap. Delivery via the tap and pipe, and overflow from the drum, takes place outside the bund protecting the tank.
(b) On 20 March 1995 as a result of someone opening the tap a very significant amount of diesel escaped from that tank so that the same was empty.
(c) That evening two officers of the Respondent went to the scene. The tank was empty and the tap was switched off. Very significant amounts of diesel had been discharged and the yard was significantly contaminated around the tank and towards the storm drain. The storm drain which ran under a very large yard had conducted substantial quantities of the oil into the river.
(d) The oil was first smelt by a Mr Williams about half a mile downstream before half past eight in the evening.
(e) Having regard to the distances and quantities and the realities of the situation, the diesel must have been running from the tank for a significant period before Mr Williams was able to identify it at something before half past eight in the evening. We inferred that it had been running for at least in the region of an hour or so previously. At that stage the yard would have been open to the public but this was on a controlled basis with sales staff or office staff in the vicinity.
(f) The oil was still running from the surface drain outlet into the river at a quarter to ten in the evening when the officers arrived. It was a very considerable amount.
(g) We concluded that the tap was opened well before half past eight and that it was closed after the tank was empty and before the arrival of the Respondent's officers at some time after a quarter to ten. There was still a lot of oil on the surface of the yard and the officers took steps to prevent it running down the drain.
(h) We were unable to find as a fact who had opened the tap. Two youths had been seen walking amongst the vehicles at twenty past eight and made their escape through a hole in the fence which they had cut in order to gain entry. However, we did not regard them as prime candidates for having opened the tap because, if they had done it, they behaved very peculiarly thereafter. It would have been surprising if they had remained for a significant period of time after having done that. They were never seen in the relevant area and it strains credulity that they would open the tap, wait for it to empty and then turn it off. There were some members of staff still present, apart from security; one, two or three car cleaners, although the office staff had gone at eight o'clock. There were members of the staff still there when the Respondent's officers arrived towards 10 o'clock.
(i) There was no evidence of any member of the Appellant's staff having turned the tap on but we were satisfied that it was overwhelmingly likely that it was a member of staff who turned it off, having seen the oil on the yard.
(j) There was a history of local opposition to the Appellant's business and premises. The tap may have been turned on by a malicious intruder and it may have been one of the young men. It may have been an aggrieved visitor or an upset local person; this may have been connected with a public enquiry into a disputed footpath which was to take place the following day.
At the end of the case the Court stated:—
"Our conclusion was that, applying the criminal burden and standard of proof, we do not know who turned the tap on, but we are satisfied that a member of the Appellant's staff turned it off. The Appellant has brought the oil onto the site and put it in a tank with wholly inadequate arrangements for withdrawal—outside the bund. We had regard to the nature and position of the bund, the inability of the tap to be locked and the inadequacy of the bund to contain overflow in the circumstances which happened, whether they were deliberate or negligent or careless.
The Appellant should have foreseen that interference with their plant and equipment was an ever present possibility and they failed to take the simple precaution of putting on a proper lock and proper bund and this was a significant cause of the escape even if the major cause was third party interference."
II
The type of problem which this case poses has frequently been before the courts. It is common ground that from the case law the following propositions may be deduced.
1. To be guilty of causing, the defendant need not be shown to be the sole cause of an event;
2. To be guilty of causing the defendant need not know or foresee the consequences of his acts, omissions or role;
3. Where there are a number of possible causes the question which the court ought to ask itself is whether the intervening cause, competing cause or other cause (as the case may be) is of such a powerful nature that the conduct of the defendant can not amount to a cause at all in the circumstances of the case;
4. Whether the conduct of the defendant amounts to causing is a matter of common sense for the adjudicating tribunal on the facts of any particular case.
In the present case the factors potentially leading to the conclusion that the Appellants had caused the pollution included the following
1. They collected large quantities of diesel oil in a tank installed or adopted by them
2. The outlet of the tank was controlled by a simple tap which was not in any way locked and was accessible to the public
3. They installed or adopted a pipe running from the tank to a smaller drum unable to contain the contents of the tank
4. The smaller drum was outside any bund
5. The escaping oil must have been visibly escaping for a long time.
6. Although the defendant had staff present none of them did anything about the escaping oil.
7. There was a history of local opposition to the appellant's activities.
The strongest point in the defendant's favour was that the court was unable to be sure that any of its staff had opened the tap.
What it all boiled down to was that the defendant had gathered the pollutant on site, installed or adopted a system which involved clear danger of pollution of the river should the tap be left or turned on for any length of time, and operated a supervisory system under which the tap could be turned on by someone and left on without the company taking steps to turn it off again.
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