Empress Car Company (Abertillery) Ltd v National Rivers Authority

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD LLOYD OF BERWICK,LORD NOLAN,LORD HOFFMANN,LORD CLYDE
Judgment Date05 February 1998
Judgment citation (vLex)[1998] UKHL J0205-1
Date05 February 1998

[1998] UKHL J0205-1

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Nolan

Lord Hoffmann

Lord Clyde

Empress Car Company (Abertillery) LTD.
(Appellants)
and
National Rivers Authority
(Respondents)
LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I would dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I too would dismiss this appeal.

LORD NOLAN

My Lords,

3

I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Hoffmann. For the reasons he has given, I too would dismiss this appeal.

LORD HOFFMANN

My Lords,

4

Empress Car Company (Abertillery) Ltd. ("the company") was convicted at the Crown Court sitting at Newport, Gwent (His Honour Judge Crowther Q.C. and two justices) of "causing poisonous, noxious or polluting matter or sold waste to enter controlled waters" contrary to section 85(1) of the Water Resources Act 1991. "Controlled waters" are defined in section 104(1)(c) and (3) to include any river and in this case were the waters of the River Ebbw Fach, which ran close by the company's premises in Abertillery. A large quantity of diesel oil had escaped from a tank into the river in circumstances which I shall shortly describe. Section 85(1) reads as follows:

"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."

5

The company was originally convicted by the Tredegar justices and appealed to the Crown Court. Its appeal from the Crown Court to the Divisional Court by way of case stated was also dismissed. It now appeals to your Lordships' House. The facts as found in the case stated may be summarised as follows. The company maintained a diesel tank in a yard which was drained directly into the river. The tank was surrounded by a bund to contain spillage, but the company had overridden this protection by fixing an extension pipe to the outlet of the tank so as to connect it to a drum standing outside the bund. It appears to have been more convenient to draw oil from the drum than directly from the tank. The outlet from the tank was governed by a tap which had no lock. On 20 March 1995 the tap was opened by a person unknown and the entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river.

6

The Crown Court found that there was a history of local opposition to the company's business. The tap might have been turned on by a malicious intruder, an aggrieved visitor or an upset local person. The incident coincided with a public inquiry about a disputed footpath which was to be held on the following day. But the court made no finding as to the identity of the person who turned on the tap. The evidence was consistent with it having been an employee or a stranger. The court held that it did not matter because on either view the company had "caused" the oil to enter the river. In the case stated, the court gave the following reasons:

"8.… The appellant had 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.

"9. 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 a proper bund and this was a significant cause of the escape even if the major cause was third party interference."

7

The company's case before the Divisional Court was that if the evidence was consistent with the tap having been opened by a stranger, it should have been acquitted. The escape would have been caused by the stranger and not the company. The Divisional Court disagreed, saying that although it would be true to say that the escape had been caused by the stranger, it was open to the Crown Court to find that it had also been caused by the company. But they said that the authorities on the subject were not easy to reconcile and certified the following question of general public importance:

"Whether a person can be convicted of an offence under section 85(1) of the Water Resources Act 1991 of causing polluting matter to enter controlled waters if it is proved that -

(a) he held the polluting matter and contained it in such a way as it would not escape but for a positive act by himself or another; and

(b) he failed to take reasonable precautions to prevent such an escape occurring as a result of an action by a third party; and

It is not proved that he took any other actions which resulted in the pollution."

8

Before your Lordships, Mr. Philpott for the company repeated his submission that the cause of the escape was not the keeping of the oil by the company but the opening of the tap by the stranger. He also said that "causing" for the purposes of section 85(1) required some positive act and that the escape could not be said to have been caused by any such act by the company. All it had done was to create a state of affairs in which someone else could cause the oil to escape. There are accordingly two issues in the case. The first is whether there has to have been some "positive act" by the company and, if so, whether the company did such an act. The second is whether what it did "caused" the oil to enter the river.

9

1. Acts and omissions

10

My Lords, the two limbs of section 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951, which was in the same terms as section 85(1) of the 1991 Act, were analysed by Lord Wilberforce in Alphacell Ltd. v. Woodward [1972] A.C. 824, 834:

"The subsection evidently contemplates two things–causing, which must involve some active operation or chain of operations involving as a result the pollution of the stream; knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge."

11

Putting the matter shortly, if the charge is "causing", the prosecution must prove that the pollution was caused by something which the defendant did, rather than merely failed to prevent. It is, however, very important to notice that this requirement is not because of anything inherent in the notion of "causing". It is because of the structure of the subsection which imposes liability under two separate heads: the first limb simply for doing something which causes the pollution and the second for knowingly failing to prevent the pollution. The notion of causing is present in both limbs: under the first limb, what the defendant did must have caused the pollution and under the second limb, his omission must have caused it. The distinction in section 85(1) between acts and omissions is entirely due to the fact that Parliament has added the requirement of knowledge when the cause of the pollution is an omission. Liability under the first limb, without proof of knowledge, therefore requires that the defendant must have done something.

12

In this sense, Mr. Philpott is right in saying that there must have been some "positive act" by the company. But what counts as a positive act? We were referred to two cases in which the defendant's conduct had been held to be insufficient. In Price v. Cromack [1975] 1 W.L.R. 988 the defendant maintained two lagoons on his land into which, pursuant to an agreement, the owners of adjoining land discharged effluent. The lagoons developed leaks which allowed the effluent to escape into the river. Lord Widgery C.J. said that the escape had not been caused by anything which the defendant had done. There was no "positive act" on his part. The effluent came onto the land by gravity and found its way into the stream by gravity "with no act on his part whatever:" see p. 994. The other case is Wychavon District Council v. National Rivers Authority [1993] 1 W.L.R. 125. The council maintained the sewage system in its district as agent for the statutory authority, the Severn Trent Water Authority. It operated, maintained and repaired the sewers. As sewage authority, it received raw sewage into its sewers. On the occasion in question one of the sewers became blocked. The sewage flowed into the stormwater drainage system and into the River Avon. The Divisional Court held that the Council had not done any positive act which caused the pollution. If it had known of the blockage it might have been liable for "knowingly permitting" but it could not be liable for causing.

13

My Lords, in my opinion these two cases take far too restrictive a view of the requirement that the defendant must have done something. They seem to require that his positive act should have been in some sense the immediate cause of the escape. But the Act contains no such requirement. It only requires a finding that something which the defendant did caused the pollution. I shall come later to the question of what amounts to causing. Assuming, for the moment, that there was a sufficient causal connection between the maintaining of the lagoons in Price v. Cromack or the operation of the sewage system in Wychavon District Council v. National Rivers Authority and the respective escapes, I do not see why the justices were not entitled to say that the pollution was caused by something which the defendants did. Maintaining lagoons of effluent or operating the municipal sewage system is doing something.

14

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