QUEEN'S BENCH DIVISION
B e f o r e :
MRS JUSTICE HALLETT
|EXPRESS LIMITED T/A EXPRESS DAIRIES DISTRIBUTION||(CLAIMANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR R SMITH QC appeared on behalf of the DEFENDANT
Thursday, 27th February 2003
Crown Copyright ©
"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".
85(6) provides for the penalties on summary conviction and on conviction on indictment.
" . . . contemplates two different things -- causing, which must involve some active operation or chain of operations involving as a result the pollution of the stream; and knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge".
The appellants in this case were convicted of causing, not of knowingly permitting.
"A person shall not be guilty of an offence under section 85 above in respect of the entry of any matter into any waters ... if --
(a) the entry is caused ... in an emergency in order to avoid danger to life or health;
(b) that person takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the entry and of its polluting effects; and
(c) particulars of the entry ... are furnished to the authority as soon as reasonably practicable after the entry occurs".
"i) The vehicle registration number T822 KNN was coupled to a tanker trailer T520 that contained milk and was being used by Express Dairies Distribution on 1st February 2000 in the course of its business.
ii) The vehicle was driven by Mr Kevin Pinches, an employee of Express Limited, on the M5 southbound.
iii) The trailer was built to the required British Standard but had an extra foot valve fitted to it, which exceeded the standard. The trailer was properly maintained and had passed the necessary tests.
iv) As a result of a tyre blow out on the trailer, part of the spray suppression system became detached hitting the under-run protection barrier (a legal requirement). The barrier became detached and sheared the delivery pipe, causing approximately 4,000 litres of milk to escape from the forward compartment of the milk tank.
v) Mr Pinches pulled on to the hard shoulder of the M5 southbound, just north of junction 4, where he stopped. At that point there are two drains approximately 100 metres apart which have no catch pit and feed into a culverted section of Battlefield Brook, controlled water within the meaning of the Water Resources Act 1991.
vi) The emergency services were alerted, including the Environment Agency, by the driver, who contacted his depot for advice and then operated the foot valve to stem the flow of escaping milk. The emergency services and the Environment Agency attended the scene.
vii) The milk from the tank entered Battlefield Brook and subsequently flowed to the pond at Silverdale.
viii) The Environment Agency deployed aerators and started aeration at approximately 6.00 pm in the pond at Silverdale."
"xii) Whether the statutory defence under section 89 of the Water Resources Act 1991 is available to a person in circumstances in which the entry is caused or permitted or the discharge is made as a result of an emergency in which a person acts so as to avoid danger to life or health or whether the statutory defence is limited to circumstances in which the entry or discharge is itself the emergency occasioned to avoid danger to life or health.
xiii) Whether there was any evidence on which a reasonable Magistrates' Court could have concluded that:
. . .
xv) The defendant caused polluting matter to enter the Battlefield Brook;
xvi) The release of milk was not in an emergency to avoid danger to life and health".
(1) Was there a break in the chain of causation?
"(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 the 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".
In that particular case, applying those principles, it seemed to him that there was ample evidence upon which the court was entitled to find that the company had caused the pollution in that case.
"He explained that the near side front tyre had exploded, which had broken the 1.5 metre long spray suppression system (mud flap). He stated that this system was held in place by a stainless steel strap which . . . was blown from its mountings by the debris from the tyre. He went on to explain that the spray suppression system then impacted with the side under run protection rail (required by legislation), which was welded to the metal rings that form the sub frame of the tank and also the tank chassis. He went on to explain that the side under run rail was detached by the debris and that this hit the outlet valve and sheered it off allowing milk to escape. He went on to explain that each event was part of a chain and each step was unique and that complete failure of tyres with explosive force [is] an unusual event and it was not common that the spray suppression system . . . be damaged by such an event. Mr Irvine then stated that he had never seen such an event detach the under run rail which prevents cars going under the tanker and also serves to protect the outlet valve".
(2) Does the defence in section 89(1) apply?
"We find that this section is limited to situations in which the discharge occurs to preserve life or health, as in the example of the aeroplane which discharges fuel before making an emergency landing and so is not applicable to this case as the discharge was the result of the incident".
"The defence to the offence of causing polluting matter to enter controlled waters is available to a person whose act in causing that entry was done in an emergency in order to save life or health".
It follows that the answer to question xvi) on the evidence available does not arise because the Justices were asking themselves the wrong question.