Section 85(1) of Water Resources Act 1991 — Offence of causing or knowingly permitting pollutants to enter controlled waters — Whether liability attaching to contractors brought in to deal with a polluting emergency — Contractors acquitted — Appeal dismissed
The first respondent, B, was employed by a water company to unblock a sewer that was polluting a nearby stream. B undertook various remedial measures but failed to clear the blockage. It finally instructed the second respondent, E, to carry out tankering, which involved pumping sewage from a manhole upstream of the blockage and discharging it into another manhole downstream, so as to bypass the blockage. E was instructed to continue the operation throughout the night, and thereafter to undertake another job for B elsewhere. E’s employee had not been informed of the sewage overflow and was left to carry out his task unsupervised. He left the next morning at the agreed time. There was then a further overflow.
The appellant consequently prosecuted the water company and the respondents for causing or knowingly permitting polluting matter to enter controlled waters contrary to section 85(1) of the Water Resources Act 1991. It further alleged that B was vicariously liable for the offences of E, which had acted as its agent. The district judge acquitted the respondents, finding, on the evidence, that; (i) the water company, and not B, had been responsible for managing the site; (ii) both respondents had acted upon its instructions; and (iii) E had not acted as an agent of B.
The appellant appealed. It contended, inter alia, that the judge had been overly influenced by the contractual relationship between the parties.
Held: The appeal was dismissed.
A contractor brought in to deal with a polluting emergency could fall within the ambit of section 85(1) provided that it had assumed responsibility for managing the incident, which, in turn, was likely to depend upon the terms of its contract. Accordingly, the contractual relationship between the parties was a critical aspect of the necessary factual analysis. The critical issue with regard to B was whether it had been contractually obliged to act independently of the water company or simply obliged to provide services as requested. The appellant had failed to establish that B had assumed any responsibility beyond carrying out the specific measures that it had been instructed to perform by the water company. Likewise, E had done no more and no less than it had been contractually obliged to do. Criminal liability could rarely, if ever, arise under section 85(1) where a contractor fulfilled a simple contractual obligation. Moreover, there was no evidence that E had acted as an agent of B, rather than as an independent contractor.
Kevin de Haan QC and Barry Berlin (instructed by the legal department of the Environment Agency) appeared for the appellant; Ian Croxford QC (instructed by Fairweather Whillis & Toghill, of High Wycombe) appeared for the first respondent; Colin Thomann (instructed by Stephensons, of Wigan) appeared for the second respondent.
Sally Dobson, barrister
