Escape of oil from tank into river – Company convicted of causing polluting matter to enter controlled waters – Company contending cause of escape not keeping of oil by company but opening of tap by stranger – Whether necessary to show positive act by company – Whether company having “caused” oil to enter river – Water Resources Act 1991, section 85(1)
The company maintained a diesel tank in a yard on its premises in Abertillery, which was drained directly into the River Ebbw Fach. The outlet from the tank was governed by a tap which had no lock. On March 20 1995 the tap was opened by a person unknown, and its entire contents overflowed into the yard and passed down the drain into the river. The company was charged under section 85(1) of the Water Resources Act 1991 which provided “a person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter . . . to enter any controlled waters”. The company was convicted. Its appeal to the Crown Court and its appeal by way of case stated to the Divisional Court were dimissed. The company appealed to the House of Lords submitting,inter alia, (1) 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; and (2) 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.
Held The appeal was dismissed.
1. The first issue was whether there had to be some “positive act” by a defendant and if so, whether the defendant did such an act . The prosecution had to prove that the pollution was “caused” by something which the defendant did, rather than merely failed to prevent. Too restrictive a view of this requirement had been taken in Price v Cromack [1975] 1 WLR 988 and Wychavon District Council v National Rivers Authority [1993] 1 WLR 125 . The only question was whether something which the defendant had done, whether immediately or antecedently, had caused the pollution. Therefore, provided that it had been open to the court to find the necessary causal connection established, the justices had been entitled to convict.
2. The second issue was whether what the company did “caused” the oil to enter the river. Justices dealing with prosecutions for “causing” pollution under section 85(1) should first require the prosecution to identify what the defendant was alleged to have done to cause the pollution. If the defendant could not be said to have done anything at all, the prosecution would fail. The prosecution did not have to prove that the defendant had done something which was the immediate cause of the pollution. When the prosecution had identified what the defendant had done, it was for the justices to decide whether it caused the pollution. If the defendant did something which produced a situation in which the polluting matter could escape, but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. The former would not negative the causal effect of the defendant’s acts, even if it was not foreseeable. If it was the latter, it was open to the justices to hold that the defendant did not cause the pollution: National Rivers Authority v Wright Engineering Co Ltd [1994] 4 All ER 281 overruled. Applying those principles, the Crown Court had been entitled to find that the company had caused the pollution.
Frederick Alan Philpott and Jonathan Goulding (instructed by Howell & Co, of Birmingham) appeared for the company; Nigel Pleming QC and Mark Bailey (instructed by the solicitor to the Environment Agency, of Cardiff) appeared for the National Rivers Authority.
