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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lady Paton
C.G.B.
Nicholson, CBE, QC
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[2008HCJAC49]
Appeal No: XJ 453/06
OPINION OF THE COURT
delivered by C.G.B.
NICHOLSON, CBE, QC
in
APPEAL BY STATED CASE
in causa
AMOCO (UK) EXPLORATION COMPANY
Appellants;
against
KATE FRAME, PROCURATOR
FISCAL, ABERDEEN
Respondent:
_______
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Appellant: Gale,
QC; McGrigors
Respondent: MacNeill, QC,
A.D.; Crown Agent
16
September 2008
Background
[1] This
is an appeal by Stated Case against both conviction and sentence. Early in 2005
the appellants were charged at the instance of the respondent in the following
terms:
"On July 1st
2004, on the Lomond offshore installation located [in a designated area of the
North Sea], and being the person carrying on operations for the exploration of
the seabed and subsoil and the exploitation of their natural resources, namely
searching and boring for petroleum from the said Lomond offshore installation,
you ..... did whilst circulating diesel fuel for the operation of plant on the
installation allow said fuel to over fill a storage tank and did thus discharge
a mixture containing oil from said installation into the sea.
CONTRARY to
Section 3(1)(b) and (3) of the Prevention of Oil Pollution Act 1971."
[2] The
appellants pled not guilty to that charge and, in due course, the case went to
trial before a sheriff at Aberdeen on 10 June 2005. Evidence was led on that
day and on six further (mostly non-consecutive) days, and the trial eventually
concluded on 2 December
2005. On that day the sheriff found the appellants guilty as
libelled, and he imposed a fine of £25,000 (the statutory maximum on summary
conviction being £50,000). On 9 December
2005 the appellants applied for a Stated Case, and that was duly
issued on 21 March
2006. For reasons which are not apparent the appeal did not call
before this Court until Thursday
18 October 2007. On that occasion the Bench comprised Lord Osborne,
Lord Johnston and Temporary Judge Nicholson. In accordance with the appellants'
prediction as to the amount of time which would be required for the hearing, a
half day had been set aside for the disposal of the appeal. However, it turned
out that the appellants' prediction had been woefully inadequate, and in the
result, and after adjournment of all of the Court's business for the following
day, the hearing was continued to Friday 19 October 2007. That, however, proved to be just
enough to enable counsel for the appellants to complete his submissions and for
the Advocate depute to give a brief summary of the submissions which he
proposed to advance in response. In the circumstances this Court had no
alternative but to continue the appeal further to a date to be fixed.
[3] That,
of course, was not easy to arrange since it involved the clerk of court having
to try to find up to two days when the same Bench, the same counsel for the
appellants, and the same Advocate depute could all be available. Eventually,
two days in July 2008 were identified as suitable, namely 8 and 9 July. Sadly,
however, only a few weeks before those dates Lord Johnston unexpectedly died.
That, of course, meant that the appeal hearing had to be recommenced from the
beginning with at least one new member on the Bench. In the circumstances it
proved to be possible to arrange for Lady Paton to become a member of the
Bench, and for the whole of the week beginning on 8 July to be made available
for a fresh hearing of the appeal. For the purposes of that hearing Mr Gale QC
prepared, and lodged, a brief, but nonetheless comprehensive, written summary
of his submissions. His purpose in doing so was to enable Lady Paton to obtain
a flavour of those submissions in advance of the hearing, and at the same time
to remind the other two members of the Bench of what had been submitted some
nine months earlier. We are most grateful to Mr Gale for having taken this
course which we found to be extremely helpful.
The circumstances giving rise to
the charge
[4] On
1 July 2004 the supply
vessel, Maersk Fighter, arrived at the appellants' Lomond installation in a
designated area of the North Sea to offload
supplies which were required by that installation. After unloading other
supplies it was asked to bunker diesel fuel. On the installation there are two
diesel storage tanks, one called the north tank and the other the south tank.
In normal operations diesel oil is circulated from one of the tanks to the
various points on the installation where it is required for the operation of
generators and other pieces of equipment, and it is then returned to the same
tank. The other tank is kept in reserve. On 1 July 2004 the north tank was in use for the circulation of
diesel fuel round the installation, and accordingly it was intended that the
diesel oil from the supply vessel should be bunkered in the south tank.
[5] Around
1300 hours on the date in question the Maersk Fighter began to pump diesel into
the south tank. By 1407 hours the south tank level had reached 67%, and at 1538
a level 1 alarm was activated for the south tank. That alarm was accepted in
the control room, but no action was taken. At 1628 a level 2 alarm was
activated for the south tank. That alarm was also accepted but, once again, no
action was taken. At 1730 the offshore installation manager observed a slick in
the sea around the leg of the north east of the platform, and he detected a
smell of diesel. It was then discovered that the north tank was low at 23%
while the south tank was high at 89% full. It then became apparent that diesel
oil from the north tank had been circulating into the south tank instead of
back to the north tank. As a result the south tank was over full and diesel was
running from it through the overflow pipe into the sea. Immediate action was
then taken to stop the north pump and to reduce the level of the south tank by
pumping diesel from it into the north tank. That had the effect of stopping the
discharge. It is a matter of agreement that the amount of the discharge was an
estimated 6.4 tonnes of diesel oil. The explanation for this occurrence appears
to be that, for some reason for which he could give no explanation, a witness
named McGregor, who was a mechanical technician and an employee of a
sub-contractor of the appellants, had opened what is known as a spill back
valve to the south tank during the course of the bunkering operation. This had
the consequence that diesel oil, circulating from the north tank, and which
should have been returned to that tank, was instead being re-routed to the
south tank where it added to the fuel already being bunkered from the supply
ship, thus causing that tank to overflow.
The statutory provisions
[6] The
Prevention of Oil Pollution Act 1971 ("the 1971 Act"), being the Act under
which the appellants were charged in the present case, is a consolidating
statute which consolidates the Oil in Navigable Waters Acts 1955 to 1971 and
section 5 of the Continental Shelf Act 1964. For present purposes it is
necessary to refer to three sections in the 1971 Act.
[7] Section
1, which is headed "Discharge of certain oils into sea outside territorial
waters" provides, in subsection (2):
"(2) This
section applies -
(a)
to crude oil, fuel oil and lubricating oil; and
(b)
to heavy diesel oil, as defined by regulations made
under this section by the Secretary of State;
and shall
also apply to any other description of oil which may be specified by
regulations made by the Secretary of State .....".
[8] Section
3 of the 1971 Act bears the headnote "Discharge of certain oils from pipe-lines
or as the result of exploration etc. in designated areas", and it provides, inter
alia:
"(1) If any
oil to which section 1 of this Act applies, or any mixture containing such oil,
is discharged into any part of the sea -
(a)
from a pipe-line; or
(b)
(otherwise than from a ship) as the result of any
operation for the exploration of the sea-bed and subsoil or the exploitation of
their natural resources in a designated area,
then,
subject to the following provisions of this Act, the owner of the pipe-line or,
as the case may be, the person carrying on the operations shall be guilty of an
offence unless the discharge was from a place in his occupation and he proves
that it was due to the act of a person who was there without his permission
(express or implied)."
[9] Mention
must also be made of section 6 of the 1971 Act. It bears the headnote "Defences
of other persons charged with offences under s. 2 or s. 3", and, in so far as
relevant for present purposes, it provides:
"(1) Where
a person is charged, in respect of the escape of any oil or mixture containing
oil, with an offence under section 2 or 3 of this Act -
(a)
.....
(b)
as a person carrying on operations for the exploration
of the sea-bed and subsoil or the exploitation of their natural resources; or
(c)
as the owner of a pipe-line,
it shall be
a defence to prove that neither the escape nor any delay in discovering it was
due to any want of reasonable care and that as soon as practicable after it was
discovered all reasonable steps were taken for stopping or reducing it."
The issues at the trial before the
sheriff
[10] It was never in dispute in this case that, on the relevant
date, there was a discharge into the sea of diesel oil, to the agreed amount of
around 6.4 tonnes, from the appellants' installation at the location in the North Sea specified
in the charge. However, three matters were explored and argued at some length
before the sheriff. First, it was submitted on behalf of the appellants that
the Crown had failed to establish that the appellants had the special capacity
which was necessary to bring them within the ambit of section 3(1)(b) of the
1971 Act. The sheriff rejected that submission, partly by reference to section
255 of the Criminal Procedure (Scotland) Act 1995,
and partly on the basis that in any event the evidence adduced before him
sufficiently established that the appellants in fact met the 'capacity'
requirements of section 3(1)(b). In the application for a Stated Case the foregoing
submissions were revived. However, before this Court Mr Gale confirmed that he
did not propose to pursue that ground of appeal, and he accepted that, in that
situation, we should answer the first question posed by the sheriff in the
Stated Case in the affirmative. We accordingly say no more on that matter.
[11] The second issue raised before the sheriff concerned the
question whether the discharge of oil in the present case could properly be
said to have taken place "as the result of any operation ..." as required by
section 3(1)(b) of the 1971 Act. On the basis of the interpretation put on
those words by the appellants it was submitted that it had not been established
that there had been any offence within the meaning of the section: but that
submission was rejected by the sheriff. This matter was the subject of
substantial submissions in the course of the hearing before this Court.
[12] The third issue raised before the sheriff related to the
defence which is provided by section 6(1) of the 1971 Act. That, of course,
came into play in the event, as turned out to be the case, that the sheriff
rejected the appellants' submissions in relation to the offence created by
section 3(1)(b). The sheriff, however, concluded that the defence had not been
established and, as we have already noted, he proceeded to find the appellants
guilty as libelled. The terms of section 6(1) were also the subject of
substantial submissions before this Court.
[13] There were, accordingly, two
main issues, namely what we have just referred to as the "second" and "third"
issues, which were the subject of debate in the course of the appeal hearing.
Since they both involved substantial submissions, often with reference to a
variety of ancillary matters, it will be convenient to deal with each of them
in turn.
The offence created by section
3(1)(b) of the 1971 Act
(1) Submissions for the
appellants
[14] Putting it shortly for the moment, Mr Gale's submission in
relation to section 3(1)(b) of the 1971 Act was that, having regard to the words
"as the result of any operation ..." as used in the subsection, there has to be
proof of a causal connection between any discharge and a specified operation
for the exploration of the sea-bed and subsoil or the exploitation of their
natural resources. In the present case, he submitted, the sheriff has made no
findings in fact to demonstrate the existence of such a connection. In
particular, Mr Gale drew attention to the words "namely searching and boring
for petroleum" which appear in the charge libelled in the complaint. He
submitted that there is no finding to support that part of the charge; and he
went on to say that in any event the appellants' installation in the present
case is a gas producing platform which does not involve any boring or drilling,
least of all for petroleum. In those circumstances, it was submitted, the
prosecution must fail because (a) there was no evidence to establish that the
appellants were, at the relevant time, engaged in the specific operation set
out in the complaint, namely searching and boring for petroleum, and (b) there
was no evidence of a causal connection between that operation and the discharge
of diesel oil which occurred in the present case.
[15] In light of the foregoing submissions we inquired whether there
had been a submission of no case to answer in terms of section 160 of the
Criminal Procedure (Scotland) Act 1995
at the conclusion of the Crown evidence. At one point in the Stated Case the
sheriff appears to indicate that there had been such a submission, but there is
no record of it in the minutes of proceedings. Mr Gale (who had represented the
appellants at the trial) made it clear to us that there had been no such
submission, and that he had simply presented his whole submissions at the
conclusion of all of the evidence. The Advocate depute confirmed that his
understanding was to the same effect. It therefore follows that the second
question posed by the sheriff (relative to his rejection of a no case to answer
submission) is inappropriate, and it was a matter of agreement that we need not
answer it. We should add, however, that, while it would probably have been
better if this matter had been raised as a section 160 submission, it was, in
our view, still open to Mr Gale to present the submissions which we have just
summarised both at the conclusion of the trial and again before this Court.
(2) Submissions by the Advocate
depute
[16] In response to Mr Gale's submissions regarding the meaning to
be given to section 3(1)(b) of the 1971 Act the Advocate depute began by
drawing our attention to the fact that in the present case the Crown had
prepared and served a Statement of Uncontroversial Evidence in terms of section
258 of the Criminal Procedure (Scotland) Act 1995. Paragraph (1) of that
Statement sets out, inter alia, that "on 1st July 2004 the
accused company was the operating company on said Lomond Offshore Installation
and were carrying out operations for the exploration of the seabed and subsoil
or the exploitation of their natural resources namely searching and boring for
petroleum from the said Lomond Offshore installation". The appellants responded
to the foregoing Statement by lodging a Notice of Challenge of Facts. That
Notice, inter alia, challenged the statement that "on 1 July 2004 the accused company were
searching and boring for petroleum from the said Lomond Offshore Platform". It
did not, however, challenge the preceding part of the Crown Statement which we
have quoted above. In that situation the Advocate depute submitted that the
essential part of section 3(1)(b) had been established as being applicable in
the present case; and, for reasons which he went on to elaborate, he submitted
that the subsection in effect creates absolute liability in the event of a
discharge wherever operations of the kind specified are being carried on. That
being so, he submitted, the words in the charge which were founded on by Mr
Gale ("namely searching and boring for petroleum") were otiose, and might well
have been deleted from the charge either by the procurator fiscal or, indeed,
by the sheriff. In particular, the Advocate depute rejected the submission that
section 3(1)(b) requires that there must be a proved causal connection between
those words and the discharge which occurred in this case.
[17] The Advocate depute submitted that support for his position
could be found in section 1 of the 1971 Act (which we have quoted in paragraph
[7] above). Section 3(1) of the Act operates in respect of any oil to which
section 1 applies, and it is clear from what is contained in that section that
a discharge struck at by section 3 may consist of, for example, fuel oil or
lubricating oil, and is not restricted to crude oil being extracted from
beneath the sea bed. Thus, section 3 plainly extends to a discharge of diesel
oil which, in the present case, was being used as an integral part of the whole
operation being carried out by the appellants.
[18] The Advocate depute also sought support from the historical
background to the 1971 Act. As we have already observed, the 1971 Act was a
consolidating statute which, inter alia, incorporated section 5 of the
Continental Shelf Act 1964. That Act itself bore to give effect to certain
provisions of the Convention on the High Seas which was "done at Geneva" on 29 April 1958. We shall
come to that Convention shortly, but for the moment it will be helpful to set
out the terms of section 5 of the 1964 Act. So far as relevant, they are:
"(1) If any oil to which section 1 of the
Oil in Navigable Waters Act 1955 applies or any mixture containing not less
than one hundred parts of such oil in a million parts of the mixture is
discharged or escapes into any part of the sea -
(a) from a
pipe-line; or
(b)
(otherwise than from a ship) as the result of any operations for the
exploration of the sea bed and subsoil or the exploitation of their natural
resources in a designated area,
the owner
of the pipe-line or, as the case may be, the person carrying on the operations
shall be guilty of an offence unless he proves, in the case of a discharge from
a place in his occupation, that it was due to the act of a person who was there
without his permission (express or implied) or, in the case of an escape, that
he took all reasonable care to prevent it and that as soon as practicable after
it was discovered all reasonable steps were taken for stopping or reducing it."
[19] The Advocate depute noted that this provision is in very
similar terms to what is now to be found in the 1971 Act, though there are, of
course, some slight differences in the way in which the defence of reasonable
care is dealt with. He then took us to the 1958 Convention to which the 1964
Act was intended to give effect. Article 24 of that Convention is in the
following terms:
"Every
State shall draw up regulations to prevent pollution of the seas by the
discharge of oil from ships or pipelines or resulting from the exploitation and
exploration of the seabed and its subsoil, taking account of existing treaty
provisions on the subject."
The Advocate depute observed that
the foregoing provision uses the words "resulting from" whereas both the 1964
Act and the 1971 Act use the words "as the result of". However, he submitted
that the clear and unambiguous terms of the Article in the Convention make it
clear that what is being struck at is pollution arising out of the very
existence of installations carrying on operations of the general kind described.
He submitted that the policy underlying what is in effect absolute liability
when there is a discharge of oil is a perfectly reasonable one, particularly
when it is subject to certain defences, and he submitted that in the whole
circumstances the provision in section 3(1)(b) of the 1971 Act should be
construed in that way. On that basis the proved facts in the present case
clearly established that, subject to the possibility that a statutory defence
might be made out, there had been a contravention of the subsection.
Discussion in relation to the
offence created by section 3(1)(b) of the 1971 Act
[20] During the course of the hearing of this appeal we were
initially attracted to the construction of section 3(1)(b) of the 1971 Act
which was being advanced by Mr Gale. On one view, it appeared to be at least
arguable that the words "as the result of", as used in that subsection, meant
that there had to be some sort of causal connection between a particular
activity and a discharge of oil into the sea. However, as the debate continued,
we more and more came to the view that the interpretation advanced by the Advocate
depute is the one which must be preferred. Our reasons for coming to that
conclusion are as follows.
[21] First (and this was not expressly founded on by the advocate
depute), section 3(1)(b) is not expressed in terms of, for example, "any
specific activity within the context of an operation for the exploration of the
sea-bed etc". Had the subsection been so expressed, it might have been easier
to argue, as Mr Gale did, that the words "as the result of" should be construed
as requiring some clear causal connection between the discharge and a specific
activity. In other words, a provision in terms such as those which we have just
suggested might well have been construed as requiring a particular activity,
within the generality of North Sea
exploration and exploitation, to be identified, and as requiring proof of a
causal connection between that activity and any consequential discharge. But
that is not what the subsection provides. On the contrary, it simply refers to
what we have just referred to as "the generality", and that, in our opinion,
tends to confirm that in the context of the statute the words "as the result
of" must be read in the manner proposed by the Advocate depute, namely as
meaning "arising out of the existence of an installation carrying out the
relevant operations".
[22] We are of the view that that approach to the subsection finds
support, as was suggested by the Advocate depute, in the terms of section 1 of
the Act which makes clear, when read along with section 3, that the latter
section has effect not only in respect of oil which is being extracted from
below the sea bed but also in relation to oils which have already been refined
and which may, as happened in this case, have been brought to a platform for
use in activities which are merely ancillary (albeit essential) to the main
operations of exploration and exploitation. In our opinion, that adds weight to
the proposition advanced by the Advocate depute that, in section 3(1)(b), the
words "as the result of" must be read in the manner proposed by him.
[23] We also consider that assistance is to be obtained, as was
suggested by the Advocate depute, from a consideration of the legislative
background to the 1971 Act. In that connection Mr Gale, on being invited to
respond to the submissions advanced by the Advocate depute, submitted that that
background was irrelevant and unnecessary since the terms of section 3(1)(b) were
clear and unambiguous. In that connection he referred us to the cases of Ross
v. Lord Advocate 1986 SC (HL) 70 and P. & O. Scottish Ferries Ltd v.
The Braer Corporation and Others 1999 SCLR 540. In particular he referred
to a passage in the latter case (at p. 545B) where Lord Gill (as he then was)
considered the Convention background to a statute and said:
"For the
reasons that I gave in [another case] I consider that if the section yields a
clear and comprehensible meaning, that is the meaning that is to be given to
it, whether or not it accurately reflects the Convention".
We do not disagree with what was
said by Lord Gill in that case. However, as must have already become perfectly
clear from this Opinion, the meaning of section 3(1)(b) of the 1971 Act is
arguably not "clear and comprehensible". In that situation we consider that we
are entitled, if not indeed bound, to have regard to that subsection's previous
history, not least on account of the fact that the 1971 Act is itself no more
than a consolidating statute. Such a statute cannot, of course, make new law
and accordingly, and in the absence of a provision which on its own is "clear
and comprehensible", it is likely that a consideration of the provision's
antecedents will assist in determining what it is intended to mean. For the
reasons given by the Advocate depute we are of opinion that those antecedents,
which we have earlier described, offer considerable support to the
interpretation of section 3(1)(b) which he has urged upon us. In the whole
circumstances, therefore, we are of opinion that the interpretation of the
subsection advanced by the Advocate depute is to be preferred to that advanced
by Mr Gale.
[24] The approach adopted by the sheriff in respect of the foregoing
matters is not entirely clear since to some extent he appears to have conflated
submissions which were advanced in relation to the now superseded matter of
'special capacity' and submissions which were addressed to the commission of an
offence under section 3(1)b). Moreover, as already noted, the sheriff found the
appellants guilty as libelled. That must mean, although he does not refer
specifically to the point, that the sheriff must have held that it had been
established that, in terms of the charge, the appellants were carrying out the
operation of "searching and boring for petroleum". It now appears that that
part of the charge is inaccurate but, in accordance with the view advanced by
the Advocate depute, we agree that these words are in any event otiose. All
that is necessary for the commission of the offence is that an operator should
be shown to fall within the opening words of section 3(1)(b) but with the words
"as the result of" being construed in the manner proposed by the Advocate
depute. That, in our opinion, is the situation here. However, the absolute
liability thus created is subject to the possibility that an operator may be
able to bring himself within the protection afforded by the statutory defence
set out in section 6, and we now turn to consider that part of the appeal.
The statutory defence
(1) Submissions for the
appellants
[25] For the appellants Mr Gale began by submitting that, while the
onus of establishing the defence set out in section 6 is on the appellants, it
is a defence which can be established on a balance of probabilities. That
submission was accepted by the Advocate depute on behalf of the Crown. Mr Gale
also submitted that the duty of reasonable care mentioned in the section is a
duty to take care in respect of risks which are reasonably foreseeable. That
submission was also accepted as accurate on behalf of the Crown.
[26] Given the particular circumstances of the incident which led to
the present prosecution, including the inexplicable action of Mr McGregor in
opening the spill back valve on the north tank and the failure by un-named crew
members in the control room to respond appropriately to two alarms, a further
question of general interpretation arose in the course of the hearing in this
Court. That is whether the duty of care mentioned in section 6 is imposed
solely on the operator of the installation or extends in addition to individual
members of the crew. On one view, this is not clear from the manner in which
section 6 of the 1971 Act is framed. However, in the course of the debate we
suggested that the answer may be found in section 5 of the Continental Shelf
Act 1964 where, as we have already mentioned, the statutory defence is set out in
the same section as creates the offence rather than being expressed in a
separate section, as in the 1971 Act. Section 5, reading it shortly, provides
that a person carrying on certain operations shall be guilty of an offence
where there is a spillage into the sea, but then goes on to qualify that by
stating "unless he proves ... that he took all reasonable care to prevent it".
The use of the pronoun "he" in the second part of the words just quoted appears
to make it clear that the duty of care is incumbent on the operator of the
installation and does not extend, at least for the purposes of the offence, to
members of the crew. Given that, as already noted in this Opinion, the 1971 Act
was doing no more than consolidating section 5 of the 1964 Act along with
various other provisions, we consider that section 6 of the 1971 Act must be
construed in the manner which is made clear in section 5 of the 1964 Act so
that, in effect, no question of vicarious liability arises. Our view on this
matter was accepted by Mr Gale and by the Advocate depute.
[27] Generally, on the issue of reasonable care, Mr Gale submitted
that the appellants had put in place all reasonable precautions to avoid the
risk of a spillage of oil, and that an inexplicable action, such as that taken
by McGregor in the present case, was simply not reasonably foreseeable. In that
connection Mr Gale referred to a considerable number of specified precautions
which had been put in place by the appellants. These included the employment of
experienced and competent staff; the putting in place of clear and unambiguous
procedures for the bunkering of diesel from a supply ship; the continuous
training and assessment of staff; and the installation of audible and visible
alarms in the control room. In addition, it appears, the appellants obtained
annual environmental audits by external auditors which confirmed that the
design, systems, procedures and staff on the installation met the appropriate
ISO standard.
[28] The sheriff has made no findings regarding these matters
despite the fact that they are all detailed in adjustments to the Stated Case
which were proposed by the appellants. Those proposed adjustments were all
rejected by the sheriff but, in accordance with his statutory duty under
section 179(7) of the Criminal Procedure (Scotland) Act 1995,
he has set them out in full as an appendix to the Stated Case. In relation to
his rejection of these, and other, proposed adjustments the sheriff has merely
said that "they did not accord with my recollection or the inferences I had
drawn". In our opinion, the sheriff's approach to this is unsatisfactory. The Advocate
depute was able to confirm that evidence to support the matters dealt with in
the proposed adjustments in question had indeed been led in the course of the
trial; and in addition he very fairly indicated that no contrary evidence had
been led on behalf of the Crown. We assume that the sheriff must have taken
notes of all the evidence at the trial as it was given, but he does not say
that there was no evidence in connection with the matters in question, nor does
he say that there was such evidence but that it was challenged and that he
preferred evidence to the opposite effect (all of which, in any event, cannot
have been the case given the concession made by the Advocate depute). In the
circumstances we do not consider that the sheriff has given any good reason for
rejecting the adjustments in question, and we are of the view that in the
circumstances it is open to us to have regard to the various matters of fact
which are set out therein.
[29] In reliance on those matters and, in particular, in reliance on
the fact that the appellants had never before experienced a spillage of oil at
the installation in question, Mr Gale submitted that the sheriff should have
held that the appellants had, on a balance of probabilities, established that
the incident on 1 July 2004 was not due to any want of reasonable care. Mr Gale
also challenged the sheriff's approach in that he appears to have relied to
some extent on the fact that, subsequent to this incident, the appellants took
further steps to avoid a possible recurrence of the incident. These included,
among other things, the construction, at considerable expense, of a caisson
underneath the rig into which any overflow from the diesel tanks would be
routed rather than merely spilling into the sea. Mr Gale accepted that, given
the nature of the incident on 1 July
2004, such an additional precaution may well have been reasonable
for the future. However, he submitted that, after 1 July 2004, and with the knowledge of what
had occurred on that date, additional matters properly fell within the range of
reasonable foreseeability which could not have been foreseen at an earlier
date. He also took issue with remarks by the sheriff in the Stated Case to the
effect that "an air of complacency" had developed on the installation by 1 July 2004. He submitted that there
had been no evidence to support such a conclusion; and, in any event, that had
to do with instances of human frailty which were not reasonably foreseeable, at
least prior to the date in question.
(b) Submissions by the Advocate
depute
[30] The Advocate depute began his submissions on this part of the
appeal by founding on the fact that the workman, McGregor, who had inexplicably
opened the spill back valve on the north tank, was not an employee of the
appellants but was employed by a sub-contractor. That being so, it was
submitted, he would not have played a part in any training and disciplinary
arrangements made by the appellants. We found this submission surprising since
it is within our knowledge that most installations in the North Sea are heavily
dependent on work done by sub-contractors, but we would find it surprising if
there were not contractual arrangements in place to ensure that the employees
of sub-contractors were susceptible to training, procedural, and other regimes
which were introduced by rig operators in the interests of safety and for other
purposes. We accordingly asked the Advocate depute if there had been any
evidence at the trial to support the submission which had just been made. We
also drew his attention to the fact (as stated by the sheriff at page 10 of the
Stated Case) that McGregor had been working on the Lomond installation for 13
years prior to the incident on 1 July
2004. The Advocate depute very fairly conceded that there had
been no evidence to suggest that McGregor had been in any different position
than a direct employee of the appellants, and in that situation he did not
advance this line of argument further.
[31] The Advocate depute then went on to deal with the matter of
reasonable foreseeability. He submitted that, in any system which was dependent
for its effectiveness on human actions, reactions and omissions, there must be
a foreseeable possibility of human error. Accordingly, he took issue with a
passage in the written submission for the appellants (at the top of page 8)
where it is stated that the appellant "had no reason to believe that its
procedures had the potential to be ignored". On the whole matter the Advocate
depute submitted that it was primarily a matter for the sheriff to form a view
regarding want of reasonable care, and that it could not be said that the view
reached by the sheriff was not one that he could reasonably have formed. In
particular, it was submitted that the sheriff did not misdirect himself by
having regard to the additional precautions which were put in place by the
appellants after the incident in question.
Discussion in relation to the
statutory defence
[32] In our view it is clear that, prior to 1 July 2004, the appellants took
substantial steps to have procedures and systems in place which would guard
against the possibility of oil escaping from their installation into the sea.
That is particularly clear when one has regard to the various matters described
in the appellants' proposed adjustments. These adjustments were rejected by the
sheriff but, as we have said earlier, his reasons for rejecting them are inadequate
and unconvincing. Moreover, we are of opinion that both the sheriff and the Advocate
depute failed to attach appropriate weight to the fact that there was no
history of a previous spillage at this installation. There is no finding as to
the length of time that the installation had been in place. However, the
sheriff has told us that McGregor (whose inexplicable action was the primary
cause of the spillage) had himself been working on the installation for 13
years prior to July 2004. That is itself a substantial period of time: and the absence
of any incident of spillage during a period of that length is, in our view, a
very significant factor in determining what was or was not reasonably
foreseeable. Furthermore, and despite the submission advanced by the Advocate
depute, we consider that, when the sheriff's comments are read as a whole, it
does appear that he was influenced, at least to some extent, by a consideration
of the measures which were taken by the appellants after July 2004. In the
whole circumstances, therefore, we have come to the view that the sheriff
misdirected himself in coming to the conclusion that the appellants had failed
to establish that the discharge was not due to any want of reasonable care on
their part.
[33] Before leaving the matter of the statutory defence we should
add that section 6(1) of the 1971 Act does set out an additional hurdle which
must be overcome before the defence can be established. That is that "as soon
as practicable after [the discharge] was discovered all reasonable steps were
taken for stopping or reducing it". This part of the provision did not feature
in the submissions presented in the course of the appeal hearing, and it does
not appear to have featured in the course of the proceedings before the
sheriff. No doubt that is because, as we have explained in paragraph [5] above,
immediate, and effective, action was in fact taken to stop the discharge as
soon as it had been discovered. Consequently, that part of the statutory
provision may be taken to have been satisfied; and the consequence of that is
that, in our opinion, the whole of the statutory defence has been established
in this case.
Decision
[34] For the reasons set out in this Opinion we shall answer the
questions in the Stated Case as follows:
Question 1
is, of consent, answered in the affirmative;
Question 2
is superseded;
Question 3
is answered in the affirmative;
Question 4
is answered in the negative; and
Question 5
is answered in the negative.
It follows that the appeal against
conviction will be allowed. That being so, it is unnecessary for us to say
anything in respect of the appeal against sentence.
