|Empress Car Company (Abertillery) Ltd. v. National Rivers Authority continued|
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Before answering questions about causation, it is therefore first necessary to identify the scope of the relevant rule. This is not a question of common sense fact; it is a question of law. In Stansbie v. Troman the law imposed a duty which included having to take precautions against burglars. Therefore breach of that duty caused the loss of the property stolen. In the example of the vapour-filled drum, the duty does not extend to taking precautions against arsonists. In other contexts there might be such a duty (compare The Fiona  2 Lloyd's Rep. 506, 522) but the law of negligence would not impose one.
What, therefore, is the nature of the duty imposed by section 85(1)? Does it include responsibility for acts of third parties or natural events and, if so, for any such acts or only some of them? This is a question of statutory construction, having regard to the policy of the Act. It is immediately clear that the liability imposed by the subsection is strict: it does not require mens rea in the sense of intention or negligence. Strict liability is imposed in the interests of protecting controlled waters from pollution. The offence is, as Lord Pearson said in Alphacell Ltd. v. Woodward  A.C. 824, 842, "in the nature of a public nuisance." National Rivers Authority v. Yorkshire Water Services Ltd.  1 A.C. 444 is a striking example of a case in which, in the context of a rule which did not apply strict liability, it would have been said that the defendant's operation of the sewage plant did not cause the pollution but merely provided the occasion for pollution to be caused by the third party who discharged the iso-octanol. And in Alphacell Ltd. v. Woodward  A.C. 824, 835, Lord Wilberforce said with reference to Impress (Worcester) Ltd. v. Rees  2 All E.R. 357, which I shall discuss later, that:
Clearly, therefore, the fact that a deliberate act of a third party caused the pollution does not in itself mean that the defendant's creation of a situation in which the third party could so act did not also cause the pollution for the purposes of section 85(1).
It is not easy to reconcile this proposition with the actual decision of the Divisional Court in Impress (Worcester) Ltd. v. Rees  2 All E.R. 357, to which I have just referred. The appellants kept a fuel oil storage tank with an unlocked valve in their yard near the river. An unauthorised person entered during the night and opened the valve. The justices convicted but the Divisional Court allowed the appeal. Cooke J. said:
That question, said the Divisional Court, was capable of only one answer, namely that "it was not the conduct of the appellants but the intervening act of the unauthorised person which caused the oil to enter the river." In Alphacell Ltd. v. Woodward  A.C. 824, 835, Lord Wilberforce said that he did not "desire to question this conclusion" and Lord Salmon said that it was an example of "the active intervention of a stranger, the risk of which could not reasonably have been foreseen." The difficulty is, however, that the justices said nothing about whether the risk could reasonably have been foreseen and nor did the Divisional Court. The nearest which the justices came to this question was when they said "the valve was never locked but . . . the appellants ought to have kept it closed at all material times"--a remark which rather suggests that the possibility of tampering should have been foreseen. Whether foreseeability was a relevant matter at all is a point to which I shall return later. But the actual reasoning of the Divisional Court was that the defendant was entitled to be acquitted simply because the escape had been caused by the deliberate act of a stranger. Mr. Philpott urged upon us that the reasoning in Impress (Worcester) Ltd. v. Rees applied squarely to this case and I think that he is right. But in my view the case was wrongly decided. It is inconsistent with Lord Wilberforce's statement that the deliberate act of a third party does not necessarily negative causal connection and with the subsequent decision of this House in National Rivers Authority v. Yorkshire Water Services Ltd.  1 A.C. 444.
While liability under section 85(1) is strict and therefore includes liability for certain deliberate acts of third parties and (by parity of reasoning) natural events, it is not an absolute liability in the sense that all that has to be shown is that the polluting matter escaped from the defendant's land, irrespective of how this happened. It must still be possible to say that the defendant caused the pollution. Take, for example, the lagoons of effluent in Price v. Cromack  1 W.L.R. 988. They leaked effluent into the river and I have said that in my view the justices were entitled to hold that the pollution had been caused by the defendant maintaining leaky lagoons. But suppose that they emptied into the river because a wall had been breached by a bomb planted by terrorists. I think it would be very difficult to say, as a matter of common sense, that the defendant had caused the pollution. On what principle, therefore, will some acts of third parties (or natural events) negative causal connection for the purposes of section 85(1) and others not?
In Alphacell Ltd. v. Woodward  A.C. 824 Lord Salmon, as I have mentioned, suggested that the difference might depend upon whether the act of a third party or natural event was foreseeable or not. This was the approach taken by the justices in National Rivers Authority v. Wright Engineering Co. Ltd.  4 All E.R. 281. That was another case of vandalism leading to oil escaping from a tank into a river. The justices acquitted because they said that although there had been past incidents of vandalism at the defendant's premises, "the vandalism involved was not reasonably foreseeable because it was out of all proportion to the earlier and more minor incidents." In the Divisional Court, Buckley J., at p. 285, cited with approval a remark of Lloyd L.J. in the Divisional Court in Welsh Water Authority v. Williams Motors (Cwmdu) Ltd. The Times, 5 December 1988:
Nevertheless, said Buckley J.:
I have already said that I think that to frame the question as "who or what caused the result under consideration" is wrong and distracting, because it may have more than one right answer. The question is whether the defendant caused the pollution. How is foreseeability a relevant factor to consider in answering this question?
In the sense in which the concept of foreseeability is normally used, namely as a ingredient in the tort of negligence, in the form of the question: ought the defendant reasonably to have foreseen what happened, I do not think that it is relevant. Liability under section 85(1) is not based on negligence; it is strict. No one asked whether Yorkshire Water Services Ltd ought to have foreseen that someone would put iso-octanol in their sewage. Likewise in C.P.C. (U.K.) Ltd. v. National Rivers Authority  Env. L.R. 131 the defendant operated a factory which used cleaning liquid carried through PVC piping. The piping leaked because it had been badly installed by the reputable subcontractors employed by the previous owners of the factory. The Court of Appeal held that although the defendants were unaware of the existence of the defect and "could not be criticised for failing to discover it," the pollution had nevertheless been caused by their operation of the factory. So the fact that the negligent installation of the pipes had been unforeseeable was no defence. I agree with Lloyd L.J. that the question is not whether the consequences ought to have been foreseen; it is whether the defendant caused the pollution. And foreseeability is not the criterion for deciding whether a person caused something or not. People often cause things which they could not have foreseen.
The true common sense distinction is, in my view, between acts and events which, although not necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary. Of course an act or event which is in general terms a normal fact of life may also have been foreseeable in the circumstances of the particular case, but the latter is not necessary for the purposes of liability. There is nothing extraordinary or abnormal about leaky pipes or lagoons as such: these things happen, even if the particular defendant could not reasonably have foreseen that it would happen to him. There is nothing unusual about people putting unlawful substances into the sewage system and the same, regrettably, is true about ordinary vandalism. So when these things happen, one does not say: that was an extraordinary coincidence, which negatived the causal connection between the original act of accumulating the polluting substance and its escape. In the context of section 85(1), the defendant's accumulation has still caused the pollution. On the other hand, the example I gave of the terrorist attack would be something so unusual that one would not regard the defendant's conduct as having caused the escape at all.
In the context of natural events, this distinction between normal and extraordinary events emerges in the decision of this House in Alphacell Ltd. v. Woodward  A.C. 824. The defendant operated a paper manufacturing plant which involved maintaining tanks of polluting liquid near the river, so that pollution would occur if they overflowed. There were pumps which ought normally to have drawn off the liquid and prevented the tanks from overflowing. But in late November the pumps became choked with brambles, ferns and long leaves: they did not function and an overflow occurred. The House found no difficulty in holding that the pollution was caused by what the defendant had done: Lord Wilberforce said that "the whole complex operation which might lead to this result was an operation deliberately conducted by the appellants . . . ." As for "causing," it was true that the pollution would not have happened but for a natural event, namely, the vegetation getting into the pumps, but, as Lord Pearson said, at p. 845, that was nothing extraordinary:
Lord Salmon said it would have been different if there had been an "Act of God", which I take to mean some extraordinary natural event. Likewise in the case of the acts of third parties, I think that once one accepts, as in the light of Lord Wilberforce's comments in Alphacell and the decision in National Rivers Authority v. Yorkshire Water Services Ltd.  1 A.C. 444 one has to accept, that some deliberate acts of third parties will not negative causal connection, it seems to me that the distinction between ordinary and extraordinary is the only common sense criterion by which one can distinguish those acts which will negative causal connection from those which will not.
So I think that the defendant in Impress (Worcester) Ltd. v. Rees was rightly convicted by the justices and that the defendant in National Rivers Authority v. Wright Engineering Co. Ltd.  4 All E.R. 281 should also have been convicted. The particular form of vandalism may not have been foreseeable (someone had broken the sight gauge) but the precise details will never be foreseeable. In practical terms it was ordinary vandalism.
I shall try to summarise the effect of this discussion.
(1) Justices dealing with prosecutions for "causing" pollution under section 85(1) should first require the prosecution to identify what it says the defendant did to cause the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail: the defendant may have "knowingly permitted" pollution but cannot have caused it.
(2) The prosecution need not prove that the defendant did something which was the immediate cause of the pollution: maintaining tanks, lagoons or sewage systems full of noxious liquid is doing something, even if the immediate cause of the pollution was lack of maintenance, a natural event or the act of a third party.
(3) When the prosecution has identified something which the defendant did, the justices must decide whether it caused the pollution. They should not be diverted by questions like "What was the cause of the pollution?" or "Did something else cause the pollution?" because to say that something else caused the pollution (like brambles clogging the pumps or vandalism by third parties) is not inconsistent with the defendant having caused it as well.
(4) 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. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant's acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.
(5) The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area.
Applying these principles, it seems to me that there was ample evidence on which the Crown Court was entitled to find that the company had caused the pollution. I would therefore dismiss the appeal.
The appellant was convicted on a complaint that on 20 March 1995 he "did cause polluting matter, namely diesel oil, to enter controlled waters, namely the River Ebbw Fach . . . contrary to section 85(1) of the Water Resources Act 1991." The oil had escaped from a tank on the appellant's premises, flowed onto a yard within the premises, into a storm drain which served to drain the yard, and thereby into the river. It was evident that the oil had left the tank through an outlet which was governed by a tap. The tap had been turned on. It was not proved who had turned it on. It could, and probably was a member of the appellant's staff, but it could have been an intruder. There was no doubt that the oil was polluting matter and no doubt that it had entered the controlled waters. The question for the Justices and for the Crown Court on appeal was whether the prosecution had proved that the appellant had caused the oil to enter the waters.
A contravention of section 85(1) occurs where a person "causes or knowingly permits" a pollutant to enter controlled waters. The context gives some guidance towards the identification of what is meant by "cause." It must involve some kind of active operation by the defendant whereby, with or without the occurrence of other factors, the pollutant enters the controlled waters. If the defendant has simply stood back and not participated to any extent at all, although he might have been guilty of knowingly permitting it, but he will not have caused the pollutant to enter the waters. It is sufficient that his activity has been a cause; it does not require to be the cause. Moreover it is not necessary for the prosecution to prove knowledge, foreseeability, negligence nor intention. These matters may or may not be identified as elements in the history but they are not essentials for the proof of the offence. Furthermore, in determining whether the prosecution has proved that the defendant caused the pollutant to enter the waters account has to be taken of natural forces, acts of God and the actions of third parties, if the evidence justifies taking such considerations into account either as contributing causes or even as excluding any operation of the defendant as a causative factor. The action of a third party may in some cases be merely one of the concurrent causes. Alternatively it may in other cases be so far out of the ordinary course of things that in the circumstances any active operations of the defendant fade into the background.
There may be a danger in enlarging on any definition of what may constitute a cause that particular expressions may become elevated into standard tests which may distract attention from the critical question which the statute requires to be addressed or invite concentration on an issue whose formulation may not quite meet the statutory terms. The use of alternative language to that used by the statute may only lead to debate about the precise meaning of such alternative expressions and obscure the true question. The use of the expression "positive act," which appears in the certified question in the present appeal, seems to me to be open to that objection. As the Lord Chancellor, Lord Mackay of Clashfern, observed in N.R.A. v. Yorkshire Water Services Ltd.  A.C. 444, 452 "the word 'cause' is to be used in its ordinary sense in these provisions and it is not right as matter of law to add further requirements." While I have adopted the language used by Lord Wilberforce in Alphacell Ltd. v. Woodward  A.C. 824, of "active operation" I do not consider that it is to be regarded as anything more than a reminder that in the present context absolute passivity is not enough to constitute a cause. The maintaining of a system, the carrying on of an enterprise, and the management of a going concern may each constitute causative factors. So also may the discontinuing of an enterprise or the closing down of a concern, as in the case of Lockhart v. National Coal Board, 1981 S.L.T. 161. In many cases an omission may be analysed as the provision or operation of an inadequate or deficient system. Thus a failure to take precautions in relation to a risk of the escape of a pollutant in the course of the management of premises such as those which the appellants were occupying in the present case may be seen as an active operation for the purposes of causation.
I would also wish to avoid the language of foreseeability in relation to the inquiry into causation. In deciding whether some particular factor has played so important a part that any activity by the defendant should be seen as entirely superseded as a causative element it is not a consideration of the foreseeability, or reasonable foreseeability, of the extraneous factor which seems to me to be appropriate, but rather its unnatural, extraordinary or unusual character. Matters of fault or negligence are not of immediate relevance in the present context and the concepts particularly related to those matters should best be avoided.
The question in the present case is not whether the appellant caused the oil to leave the tank but the larger question whether the appellant caused the oil to enter the controlled waters. In light of the facts it was in my view certainly open to the Justices and the Crown Court to conclude that the appellant had caused the oil to enter the controlled waters. I have regard in particular to the provision of an exposed and unguarded tap in a situation where the premises were not secure against invasion, where on account of the local opposition to the appellant's business the malicious or thoughtless intervention of a third party would not be something out of the ordinary course, and where in the event of any escape of oil out of the tap onto the ground the layout was such as to carry such oil to the yard, to the storm drain and so to the river.
The decisions in the various cases to which we were referred, must in my view be seen as depending upon the particular facts of each of them. So far as the present case is concerned, I would dismiss the appeal.
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