England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
(Mr Recorder Wadsworth QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 31st October 2000

Introduction

1. LORD JUSTICE POTTER: This appeal by the claimant (a minor suing by his mother and next friend) arises out of an accident which occurred on a trading estate in Chelmsleigh Wood in Birmingham, in an open area near the defendants' kitchen unit factory in Walmer Way. The claimant, who was 13 years old at the time, found a drum-shaped container partly filled with a residue of waste solvent or thinner near to the defendants' factory when playing with some friends. He poured out and set light to some of the contents and, in encouraging the fire which he had started, he caused an explosion as a result of the ignition of the mixture of the vapour and air within the can. In the result he suffered severe burns.
2. The judge held that the container had been left outside the defendants' factory by a servant or agent of the defendants either for collection by the local authority or for removal by the defendants' own transport contractors to their other factory in Coventry. He held the defendants liable in negligence. He also said that they were in breach of statutory duty owed to the claimant under s.73(6) of the Environmental Protection Act 1990 ("the 1990 Act"). However, he went on to make a finding of contributory negligence against the claimant to the extent of 70% on the basis of evidence before him that, prior to lighting the contents of the can, the claimant was aware that what he was doing was dangerous and that, just before encouraging the blaze, he was expressly warned by one or more of his companions to that effect.
3. There is also a cross-appeal by the defendants, by which they contend that it was not proved on the part of the claimant that the container had emanated from the defendants' premises, the judge's finding to that effect being based upon a misunderstanding or mistaken recollection of the evidence given before him.
4. In the defendants' skeleton argument it was made clear that, in the event that this court should determine to dismiss the appeal, the defendants would seek permission to withdraw the cross-appeal. However, since I am of the opinion that the cross-appeal is without merit, I shall deal with it shortly first.
5. There was ample evidence upon which the judge could make the finding that he did. It was not formally admitted but, on the facts and photographs, could not realistically be disputed that the container concerned was similar in type to one used extensively by the defendants within their premises. The nature of the defendants' case in the statements of their witnesses was that proper precautions were taken by them to ensure that used cans of filler with residue inside were retained within their premises until they were collected and taken away for disposal. The judge was plainly not impressed by the defendants' witnesses in this respect. He prefaced his short consideration of their evidence with the remark:

"Each of them ... was anxious to tell me how little he personally had to do with the handling of the relevant products and how little he knew of anything outside his own immediate area of duty in the premises."

6. As Mr Glancy QC, for the claimant, has made clear, a conspicuous absentee from the list of witnesses for the defendants was a Mr Piggin, the former manager of the defendants, who was in charge of what went in and out of the premises and who was the person responsible for such arrangements as to waste disposal as existed in the defendants' factory. No explanation was advanced for the defendants' failure to call him.
7. The judge also rejected the positive evidence of the defendants' supervisor, Mr Murphy, that, when he left the factory on the evening of the fire, there was no rubbish left outside the confines of the premises other than two large sheets of chipboard leaning against the wall. That evidence was belied by fire service photographs taken later the same evening.
8. Further, the defendants' records showed that on the day of the incident a shipment of waste was due to be taken (and presumably was taken) from the defendants' premises to other premises in Coventry, including what appeared in a list as 15 litres of waste thinners, which amount was an estimate of the global amount of thinner left in a number of containers which were not itemised as such.
9. The judge made a positive finding that on the evening in question there was outside the factory a quantity of rubbish and that such rubbish included the container found by the complainant. The attack of the defendants upon that finding is based, first, upon the fact that there was evidence before the judge that the type of thinner used is used by 80% of industrial businesses with a use for thinner and, second, that it was the claimant's pleaded case, as well as his evidence, that he found the container on the forecourt outside factory premises adjacent to the defendants in the row in which the defendants' premises stood. Those adjacent premises belonged to a company called Metallifacture, which it was suggested (and Mr West, for the defendants, has urged upon us) might well have had a use for such thinner in the course of their business.
10. The latter point has no real substance because it remained, and remains, a matter of suggestion only, the defendants having made no attempt to call evidence to that effect or indeed evidence as to the nature of the business or processes of Metallifacture.
11. As to the former point, while it is correct that the claimant's recollection was that he had found the container outside Metallifacture's premises, which enjoyed a continuous forecourt with the premises of the defendants, the contemporary statements taken by the police from his companions, Lee Fitter and Dwayne Knight, stated that the claimant found the container by the back shutters to the doors of the defendants' factory. The claimant's third companion, Robert Mescella, did not precisely identify where the container was found, but it is plain from his statement that he was saying that it lay close to the defendants' factory. In giving oral evidence before the judge, Dwayne Knight and Lee Fitter confirmed that that was the position. Finally, Dwayne Knight had also informed the police at the time, and confirmed in his evidence, that he had on previous occasions seen tins of a similar kind left outside the factory along with bags of sawdust and wood.
12. In making his findings that on the balance of probability the tin had come from the defendants' premises, the judge stated that he relied on two further matters: first, that the claimant's description of the contents of the can resembled the description of the white paint sludge described by the defendants' witnesses as having resulted from repeated use of thinners and gun cleaner on their premises; and second, his understanding that when Mr Illidge, a director of the defendants, was questioned by the police and fire service on the day of the accident he did not disown the can but rather claimed that it had been stolen. Mr West has submitted that it was an inaccurate and unfair representation of the evidence to say that Mr Illidge did not disown the can. It does appear that the judge overstated the position in that respect. Such remarks as Mr Illidge made were made in the context of an assertion by the police that the container in issue could be identified by a serial number as having come from the defendants' premises. He insisted that the defendants had not placed any such containers outside their premises and advanced the possibility of theft only in that context. However, any error by the judge in this respect seems to me to be of marginal significance.
13. Mr West has put forward a number of arguments why it was open to the judge to have found that he was not satisfied that the tin originated from the premises of the defendants, but has quite failed to persuade me that there was not ample evidence on which the judge could find that it did so. Mr West's principal point is the criticism that, given the difference between the evidence of the claimant and his companions as to where the container was first found, the judge did not make a finding as to which was correct, but treated the issue as if it did not really matter, when, if he had accepted the case as advanced by the claimant, the fact that the container was found outside Metallifacture's premises would have cast grave doubt on the defendants being the source.
14. I do not accept that argument. It seems implicit to me from his judgment that the judge preferred the contemporary statements of the claimant's companions; but that, even if the container was found where the claimant said it was found, by reason of its proximity on a continuous forecourt, that did not invalidate the judge's conclusion on the balance of probabilities that it was a container which came from the defendants' premises. Accordingly, I turn to consider the grounds of appeal.

Grounds of appeal

15. The judge found the defendants liable on two bases. The first was that of negligence at common law. The matter was made easy for him in that regard because of express admissions made by Mr Illidge in evidence, which were summarised by the judge as follows:

"Mr Illidge told me that the system relating to waste was to keep it in the factory until it could be disposed of safely. He said that the defendants had stopped using skips for the disposal of waste because when they were kept outside the premises they were frequently set on fire by children. The system now is that the skips are held inside the premises until removed. He said to me: 'If we left things out that might easily be lit they will almost certainly be lit. I know that if we left flammable liquid outside kids would find it and start a fire.'"

16. The judge went on to state:

"On the findings of fact I have already made I have no doubt that the defendant was guilty of negligence towards the claimant by leaving out obviously flammable liquid in a place and in a situation in which they expected that kids would find it and start a fire."

17. It has not been contended by Mr West for the defendants that, if his cross-appeal fails, the judge was in error in making a finding of negligence. On that basis, he simply asserts that the judge's apportionment of damages in the proportion of 70/30 in the defendants' favour should be upheld.
18. The judge also appears to have held the defendants liable on the basis that they were in breach of section 73(6) of the 1990 Act. It is necessary to read certain provisions of the Act.
19. Section 33 provides:

"(1) Subject to subsection (2) and (3) below ... a person shall not -

(a)deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

(b)treat, keep or dispose of controlled waste or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of -

(i)in or on any land ...

except under and in accordance with a waste management licence ...

(7) It shall be an defence for a person charged with an offence under this section to prove -

(a)that he took all reasonable precautions and exercised all due diligence to avoid the commission of an offence ..."

20. Section 34 of the Act provides:

"(1) Subject to subsection (2) below [not applicable in this case], it shall be the duty of any person who ... produces ... or disposes of controlled waste ... to take all such measures applicable to him in that capacity as are reasonable in the circumstances -

(a)to prevent any contravention by any other person of section 33 above;

(b)to prevent the escape of the waste from his control or that of any other person ..."

21. By section 75(4) "controlled waste" means "household, industrial and commercial waste or any such waste". Plainly, that definition covered the product contained in the container left outside the defendants' premises.
22. Section 73(6) provides:

"Where any damage is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1) or 63(2) above, is liable for the damage except where the damage -

(a)was due wholly to the fault of the person who suffered it; or

(b)was suffered by a person who voluntarily accepted the risk of the damage being caused;

but without prejudice to any liability arising otherwise than under this sub-section."

23. It is accepted upon this appeal that the exceptions in (a) and (b) are not applicable.
24. The judge found, and the finding is not challenged, that, given his conclusion that the container had been left outside the factory by an employee of the defendants, a breach of section 34 had been established.
25. However, Mr West has submitted that the mischief at which the Act is aimed is the restricted mischief of damage directly caused by the deposit and action of such waste, and that no action lies in cases where the waste has been removed and used by a claimant in such a manner as to cause himself personal injury. There is force in that submission. However, it does not seem to me necessary to decide whether it is correct for the purposes of this case, given the judge's finding of negligence on the basis of admissions by Mr Illidge in terms which I have already quoted. Mr Illidge accepted the necessity for care in the control and disposal of the waste in this case in order to avoid precisely the kind of accident which occurred. At the same time I would observe that, in having regard to the standard of care to be expected of the defendants for the purposes of the tort of negligence, it is relevant to have regard to the terms of the 1990 Act, concerned as it is precisely with the question of "reasonable precautions" and "measures ... reasonable in the circumstances": see the language of section 33 and section 34 above.

Contributory negligence

26. I turn now to the question of contributory negligence. The relevant findings of fact made by the judge can be taken from his judgment as follows:

"So far as concerns the claimant, he at the relevant time was playing with three other 13 year olds in the area of the factory. ...

The claimant found in the same area [that is to say, an area where his companions were playing football and one had a bicycle] - whether it be right outside or nearby [the defendants' premises] to my mind is not of importance - a canister which was part full of something. He dragged that canister from the vicinity of the defendant's premises to the cover of a canopy which was on the end of a factory across the road and he dragged it there to get it out of the sight of the inhabitants of houses nearby. He says that he did that because he did not want the householders to see what he was up to. ...

[The canister] had contained a thick, viscous, milky white substance which was highly flammable.

The claimant Robert Chappell had with him a lighter. He took the can out of sight of the houses because he wanted to start a fire and he knew that he should not. He may well have seen the warning labels that the can had on it from when it originally contained the gun cleaner liquid which was highly inflammable and was appropriately marked. I have little doubt that it was the presence of these labels that caused there to spring into his mind the notion of beginning a fire with whatever might be in that can. Once he was out of sight of anyone other than his friends he poured a little of the substance on the ground and he lit it. It burned briefly, flaring up and dying down quite quickly. Next, he lit a rag which he threw on to the material which he had originally poured. By then that material was either out or nearly out.

The next sequence of events comes from ... the statements made by two of the claimant's companions to the police on the day after the accident. These statements allege in slightly different terms that someone in the group shouted out, warning the claimant not to tip the contents of the can on to the burning rag. I allowed the hearsay notice and I gave leave for Mr Glancy QC to cross-examine the only available maker of the two hearsay statements, a young man called Lee Fitter, on terms strictly limited to the contents of the notice. ...

I accept ... that there was a shouted warning to the complainant not to pour out the contents of the can on to the lighted rag. However, he did so. The vapour which was stirred up and mixed with air by the movement of the can was, according to Mr Finch the expert, by that time very highly inflammable and an explosion occurred with predictable and terrible results for the claimant."

27. In the light of his findings of fact in those terms, the judge dealt with the issue of contributory negligence in this way. He first shortly characterised the negligence of the claimant as follows:

"I gain assistance ... from the judgment of Hamilton LJ in Latham v Johnson [1913] 1 KB 388, and I cite it from pages 413 and 415. Hamilton LJ said this:

'Children's cases are always troublesome. English law has been very ready to find remedies for their injuries. Scotch law has been less indulgent. Children acting in the wantonness of infancy and adults acting on the impulse of personal peril may be and often are only links in a chain of causation extending from such initial negligence to the subsequent injury. No doubt each intervener is a causa sine qua non but unless the intervention is a fresh independent cause the person guilty of the original negligence will still be the effective cause if he ought reasonably to have anticipated such interventions and to have foreseen that if they appeared the result would be that his negligence would lead to mischief.'

Hamilton LJ goes on to say two other terms must be alluded to: a trap and attraction or allurement.

I deal with the trap:

'A trap,' says he, 'is a figure of speech not a formula. It involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking the reality of danger. Owners and occupiers alike expose licensees and visitors to traps on their premises at their peril. But a trap is a relative trap. In the case of an infant there are moral as well as physical traps. There may accordingly be a duty towards infants, not merely not to dig pitfalls for them but not to lead them into temptation.'

It is clear to me, on the basis of the evidence of Mr Illidge, that leaving what was apparently a flammable substance in an area where the defendants knew it would be an attraction to children was exactly that: leading them into temptation."

28. I pause there to remark that the judge might have added that, not merely did leaving a flammable substance in an area where it would attract children amount to a temptation, but leaving a can containing a flammable substance which, unknown to children, was likely to cause an explosion if exposed to a naked flame might rightly be called a trap.
29. The judge went on to deal with contributory negligence as follows:

"... there remains the question of contributory negligence. The question is: did the claimant suffer injury as the result partly of his own fault and partly of the fault of another person?

There can be no doubt in my mind that this was partly the claimant's fault. I saw him giving evidence. He was before me an intelligent young man of 16. At the time of the accident he was an intelligent 13 year old. He had a lighter which he knew that he should not have because it was dangerous. He found a can which was marked with warnings as to the dangerous flammability of its original contents and he took it round the corner out of slight so that adults could not see the fire which he intended to raise with the contents of that can. He started the first fire, then he set light to a rag, and then, despite the warning of his friends and knowing that he was playing with fire - a classically dangerous thing to do -he tipped the remains of that inflammable liquid on to the burning rag.

In my view he must bear on those facts the major part of the blame and I assess his contribution at 70 per cent contributory negligence against 30 per cent upon the defendant."

30. Mr Glancy has submitted that this was far too high an apportionment in favour of the defendants. He has advanced various arguments in this respect, realistically appreciating the difficulties which face him in persuading this court to overturn an apportionment made by a trial judge who has heard and seen the witnesses in a case involving lack of care on both sides. However, Mr Glancy says that, in performing the broad balancing exercise which the court has to perform in such cases, the judge appears to have left two essential matters out of account. Certainly they are not specifically mentioned in his judgment.
31. First, the negligence of the defendants in this case was to fail to provide against the very danger which occurred and which they recognised it was essential to guard against if harm to others, and in particular harm to children, was to be avoided. Furthermore, the duty was buttressed and emphasised by the statutory duty provided for in the 1990 Act, under which producers of waste are submitted to a careful regime of care and measures properly to be taken to avoid harm to the public generally. In that respect Mr Glancy submits that the defendants utterly failed to demonstrate any proper system for statutory compliance through the only witness able to speak to it. Thus the lack of care demonstrated by the claimant in relation to his own safety, namely tampering with the waste and setting light to it, was precisely the situation which the defendants in fact foresaw but failed to guard against.
32. Second, when looking at the degree of contributory negligence to be attributed to the claimant, the judge failed to advert to - and, as it appears, to take into account - the fact that the operative cause of the very serious injuries to the claimant was not simply this playing with fire, which (on the findings of the judge) he knew was forbidden and dangerous in a general sense; it was a phenomenon of which the claimant was entirely ignorant, namely the explosive mixture and accumulation of air and vapour which might, and did, occur within the container which he was wielding. As explained to the court by an expert witness, and as was throughout accepted by the parties, there was no reason why the 13-year-old claimant should have anticipated an explosion at all.
33. While the judge held, and correctly held in my view, that the fact that the claimant could still be called a child did not excuse him entirely from the consequences of the deliberate risk which he took, the degree of blameworthiness on his part was not merely substantially less than would have been the finding if adult standards were applied, but fell to be assessed against the risk which he believed he ran. Whereas the defendants were, or should have been, aware not simply of a risk of fire, but also a risk of explosion, from a can tampered with in the way the claimant tampered with it, the claimant was quite ignorant of that matter. On the judge's findings, the highest it could be put was that a 13-year-old was playing with fire, when he knew he was at risk from the flame. It could not be said that he knowingly ran the risk of, or carelessly ignored, the possibilities of serious injury by explosion. Had he known that, as he observed in evidence and as was not in dispute, he would not have done as he did.
34. I accept both aspects of the argument put forward by Mr Glancy. If the judge had them in mind when apportioning blame, he did not say so; and in my view, if he had borne them in mind, he would not have made the apportionment which he did. While the claimant, in my view, must bear a substantial measure of blame, in the light of the judge's findings it should not be the lion's share.
35. In my view the appropriate finding, put at its highest in favour of the defendants, was that of blame equally shared. I would allow the appeal and apportion liability on a 50/50 basis.
36. LADY JUSTICE HALE: I agree. I wish to add only a few words, for two reasons: first, because we are differing from the learned judge in a matter on which this court is normally most reluctant to interfere, namely the apportionment of contributory negligence and liability; but secondly, because the primary submission initially advanced on behalf of the claimant was that there should have been no finding of contributory negligence at all in this case. Very wisely, Mr Glancy did not press that argument hard in oral submissions.
37. The classic statement of contributory negligence is that of Denning LJ (as he then was) in the case of Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 324, where he said this:

"When a man steps into the road he owes a duty to himself to take care for his own safety, but he does not owe any duty to a motorist who is going at an excessive speed to avoid being run down. Nevertheless, if he does not keep a good lookout, he is guilty of contributory negligence. The real question is not whether the plaintiff was neglecting some legal duty, but whether he was acting as a reasonable man and with reasonable care."

38. In the case of a child that same duty applies, but it must take into account the age of the child. As Charlesworth & Percy on Negligence points out:

"... the test of what is contributory negligence is the same in the case of a child as of an adult, modified only to the extent that the degree of care to be expected must be proportioned to the age of the child."

39. The question therefore is, has the claimant taken such care for his own safety as it is reasonable to expect of a 13-year-old child? In this case the answer is obviously that he has not. It cannot be the law that, because some 13-year-old boys are naughty or irresponsible, all such boys are absolved from a duty to take care for their own safety. The only question is, what is reasonable?
40. In this particular case, therefore, the issue is one of apportionment. In that, as Denning LJ also pointed out in Davies v Swan Motor Co (Swansea) Ltd, there are two matters to be taken into account: the relative causative potency of what each of the parties did and their respective blameworthiness.
41. On the question of causative potency, it might be possible to suggest that the claimant in this case was indeed more responsible for what took place than was the defendant. But, when it comes to relative blameworthiness, it is difficult, in my view, to reach the conclusion that the claimant was more than twice as much to blame for what happened as was the defendant. As my Lord has pointed out, the real risk in this case was not of fire but of explosion. As Mr Finch pointed out in paragraph 4.6 of his report, this is a risk which the claimant, although no doubt able to read the label on the drum, was simply too young and inexperienced to realise. It was indeed something that many adults did not understand. Against that are the special responsibilities placed upon those who are responsible for hazardous substances such as this, who either know or ought to know of the risks entailed and take the proper steps to ensure the safe disposal of those products.
42. In those circumstances I too, like my Lord, would allow the appeal and apportion the blameworthiness as to 50% to the claimant.
43. LADY JUSTICE ARDEN: I too would allow the appeal and substitute an apportionment of 50/50 liability between the parties. I would dismiss the cross-appeal for the reasons which my Lord, Lord Justice Potter, has very fully given and to which I propose to add nothing.
44. So far as the appeal is concerned, I agree with my Lady, Lady Justice Hale, that the claimant owed a duty to take care with respect to himself. But in this case the judge found that an explosion had occurred. This is apparent from page 8 of the transcript of the judgment. Thus it became relevant to make a finding as to whether the claimant expected that there would be an explosion and, if he did not do so, whether it was reasonable for him not to have foreseen that risk. In his evidence-in-chief the claimant had said that he did not expect an explosion. He was not cross-examined on that point. He accepted that he knew that what he was doing might be dangerous. The claimant's expert, Mr Finch, explained that the explosion was likely to have occurred when vapours ignited within the can. In his report he explained that even adults frequently are unaware of the explosion hazards of flammable liquids. He was not challenged on this point in cross-examination by Mr West at the trial. Therefore, on the judge's finding that an explosion had occurred, it was relevant to know to what extent the claimant should have known about the risk of explosion as opposed to the risk of fire. The judge did not deal with that issue in his assessment of contributory negligence.
45. It is of course well established that the review by this court of the apportionment by the trial judge is of a very limited nature. As Lord Wright said in British Fame (Owners) v Macgregor (Owners) (The Macgregor) [1942] AC 197 at 201:

"... I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of the degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge's apportionment. The accepted rule was clearly stated by Lord Buckmaster, with the assent of the other Lords, in Kitano Maru (Owners) v Otranto (Owners) (The Otranto) [1931] AC 194, 204, in these words: 'Upon the question of altering the share of responsibility each has to take, this is primarily a matter for the judge at the trial, and unless there is some error in law or in fact in his judgment it ought not to be disturbed.' I might add that in The Karamea [1921] P 76 the Court of Appeal varied the proportion of liability because they took a different view of the facts. Their decision was affirmed by this House: Haugland (Owners) v Karamea (Owners) [1922] 1 AC 68."

46. Likewise Viscount Simon LC, at p.199, said:

"If the trial judge, when distributing blame, could be shown to have misapprehended a vital fact bearing on the matter, that, I think, would be a reason for considering whether a change in the distribution should be made on appeal."

47. As I see it, the judge in this case misapprehended the relevance of the degree to which the claimant should have understood the risk of an explosion and thus this court can review the apportionment itself to take account of this factor; and because Mr Finch's report was not challenged on this particular point, it is an exercise which this court can perform for itself.
48. I now turn to the Environmental Protection Act 1990. The can in question in this case was, on the judge's findings of fact, controlled waste for the purposes of section 75(4) of that Act, which contains a very wide definition of waste. There is some ambiguity in the judge's judgment as to whether the claimant had a claim under the Act. At page 8 of the transcript of the judgment the judge said:

"However, before that I turn to the question of statutory duty under the [Environmental] Protection Act. That Act specifically provides, by section 73(6), that there shall be civil liability imposed by the Act. It does so in these words: 'Where any damage is caused by waste which has been deposited in or on land, any person who deposited it or knowingly caused or knowingly permitted it to be deposited in either case so as to commit an offence under section 33(1) or 63(2) above is liable for damage except in two circumstances', which it is conceded do not arise here.

The duty of care is expressly imposed by section 34 which provides that 'It shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste, or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances to prevent any contravention by any other person of section 33 or to prevent the escape of waste from his control or that of any other person.'

Controlled waste is widely defined by section [75](4) and there can be no doubt in this case that this item was controlled waste and that if, as I have found, it was simply left outside the factory by an employee of the defendant then there was a breach of section 34 of the Act and consequently a breach of statutory duty."

49. That is all the judge said on that point. As I read it, the judge found a breach of section 34 by virtue of the failure to prevent the escape of waste, but not the constituent elements of the statutory tort created by section 73(6). To have reached that conclusion he would have to have formed a view about section 33(1), which he did not set out. If the judge had considered that there was a breach of section 73(6), then the question would have arisen as to the effect of that section and in particular paragraph (a), as the section provides that the wrongdoer is liable for the damage "except where the damage was due wholly to the fault of the person who suffered it".
50. The claimant has argued that the court should not allow statutory duties to be watered down by contributory negligence and has referred to Staveley Iron & Chemical Company Limited v Jones [1956] AC 627 and in particular to p.648, where Lord Tucker said that in Factory Act cases the purpose of imposing the absolute obligation is to protect the workman against those very acts of inattention which are sometimes relied upon as constituting contributory negligence, so that too strict a standard would defeat the object of the statute. There is a standard of care to be expected from a worker.
51. The defendants relied on two arguments: first, that section 73(6) of the Environmental Protection Act 1990 did not apply because damage was not caused by the deposit; and second, that the Act was directed to protection of the environment. It has not been necessary, on the view we have formed of this case, to express a view on these points because the claimant was content to rely either on a breach of the 1990 Act as showing the culpability of the defendants or on the culpability of the defendants without the statutory duty.
52. Mr Glancy has argued that, on that basis, the defendants should have borne the majority of the blame rather than that found by the judge. In my judgment, as Lord Justice Potter has observed, the existence of a breach of section 34 is a relevant consideration in this case. Irrespective of any finding under section 73(6), section 34 shows the seriousness with which Parliament views the need to take steps to control waste. It therefore underscores the degree of culpability to be attached to the defendants' conduct and the seriousness of their failure to take care of the can and supports my Lord's conclusion, with which I agree.
53. Of course, if this was a case where section 73(6) applied, as I see it, it would not avail the defendants to say that the legislation is in general for the protection of the environment since section 73(6) itself specifically gives a remedy for personal injury: see the definition of personal injury in section 73 itself. Thus it seems to me that it indicates that one of the legislative purposes was to protect those who might suffer personal injury and was not simply to safeguard the environment.
Order: appeal allowed; apportionment of 50/50 liability substituted; cross-appeal dismissed; claimant to have the costs of the appeal and cross-appeal up to 7th September, and thereafter the defendants to have their costs, to be set off against the claimant's costs; legal aid assessment of the claimant's costs. [DOES NOT FORM PART OF APPROVED JUDGMENT]