Die
Mercurii, 3° Maii 1972
Parliamentary
Archives,
HL/PO/JU/4/3/1218
HOUSE
OF LORDS
ALPHACELL LIMITED
v.
WOODWARD
(on appeal from a Divisional
Court of the
Queen's Bench Division)
Lord Wilberforce
Viscount
Dilhorne
Lord
Pearson
Lord
Cross of Chelsea
Lord
Salmon
Lord
Wilberforce
MY LORDS,
The enactment under which the
Appellants have been convicted is the
Rivers (Prevention of
Pollution) Act, 1951. The relevant words are " if he
"
causes or knowingly permits to enter a stream any poisonous, noxious
or
" polluting matter ".
The subsection evidently
contemplates two things—causing, which must
involve
some active operation or chain of operations involving as the
result
the pollution of the stream ; knowingly permitting,
which involves a failure
to prevent the pollution, which
failure, however, must be accompanied by
knowledge. I see no
reason either for reading back the word " knowingly "
into
the first limb, or for reading the first limb as, by deliberate
contrast,
hitting something which is unaccompanied by knowledge.
The first limb
involves causing and this is what has to be
interpreted.
In my opinion, " causing "
here must be given a commonsense meaning
and I deprecate the
introduction of refinements, such as causa causans, effec-
tive
cause or novus actus. There may be difficulties where acts of
third
persons or natural forces are concerned but I find the
present case compara-
tively simple. The Appellants abstract
water, pass it through their works
where it becomes polluted,
conduct it to a settling tank communicating
directly with the
stream, into which the polluted water will inevitably overflow
if
the level rises over the overflow point. They plan, however, to
recycle the
water by pumping it back from the settling tank into
their works: if the
pumps work properly this will happen and the
level in the tank will remain
below the overflow point. It did not
happen on the relevant occasion due
to some failure in the pumps.
In my opinion, this is a clear
case of causing the polluted water to enter
the stream. The whole
complex operation which might lead to this result
was an operation
deliberately conducted by the Appellants and I fail to see
how a
defect in one stage of it, even if we must assume that this
happened
without their negligence, can enable them to say they did
not cause the
pollution. In my opinion, complication of this case
by infusion of the
concept of mens rea, and its exceptions,
is unnecessary and undesirable. The
section is clear, its
application plain. I agree with the majority of the
Divisional
Court, who upheld the conviction, except that rather than say
that
the actions of the Appellants were a cause of the pollution I
think it
more accurate to say that the Appellants caused the
polluting matter to enter
the stream.
There are two previous decisions
which call for brief comment. The first
is Moses v. The
Midland Railway Company [1915] 113 L.T. 451 which was
decided
upon similar terminology in section 5 of the Salmon Fishery
Act.
1861. The cause of the escape of the polluting creosote was a
defective
tap in the tank wagon which did not belong to the
Railway Company but
to a private owner. The conclusion that the
Railway Company had not
caused it to flow was, I should have
thought, inevitable. The second is
Impress (Worcester) Ltd. v.
Rees [1971] 2 All E.R. 357. The Appellants
had placed a
fuel oil tank near, though not adjacent, to the River Severn.
The
oil escaped through a valve which was not kept locked. The Divisional
2
Court found that it was an
inevitable conclusion of fact that some unautho-
rised person had
opened the valve for purposes unconnected with the Appel-
lant's
business. They held that the opening of the valve was of so
powerful
a nature that the conduct of the Appellant was not a
cause of the flow of
oil. I do not desire to question this
conclusion, but it should not be regarded
as a decision that in
every case the act of a third person necessarily interrupts
the
chain of causation initiated by the person who owns or operates
the
installation or plant from which the flow took place. The
answer to such
questions is one of degree and depends upon a
proper attribution of responsi-
bility for the flow of the
polluting matter.
The actual question submitted to
this House under the Administration of
Justice Act, 1961, section
1(2) is:
" Whether the offence of
causing polluting matter to enter a stream
" contrary to
section 2 of the Rivers (Prevention of Pollution) Act 1951
"
can be committed by a person who has no knowledge of the fact that
"
polluting matter is entering the stream and has not been negligent
in
" any relevant respect."
The answer to this, I suggest,
should be yes, it being understood that the
test is whether the
person concerned caused or knowingly permitted the
poisonous,
noxious or polluting matter to enter the stream. As, in my
opinion,
the Appellants did so cause, I would dismiss the appeal.
Viscount Dilhorne
MY LORDS,
The Appellants, Alphucell Ltd.,
were convicted by the magistrates at
Radcliffe in Lancashire on an
information that they had caused polluting
matter to enter the
River Irwell contrary to section 2(1) of the Rivers (Preven-
tion
of Pollution) Act, 1951.
Section 2(1) so far as material,
reads as follows:
" Subject to this Act, a
person commits an offence punishable under
" this section-
" (a) if he causes
or knowingly permits to enter a stream any
" poisonous,
noxious or polluting matter . . ."
At their Mount Sion works, which
are on the bank of the river, the
Appellants treated manilla
fibres as part of the process of manufacturing
paper. The fibres
had to be boiled and the water in which they were boiled
became
seriously polluted. It was drained into tanks from which it
was
removed by road tankers. There was also a washing process and
the water
used in the washing process was drained into two
settling tanks situated on
the edge of the river. One settling
tank was higher than the other and the
overflow from the higher
tank went into the lower. In a shed above the
lower tank there
were two pumps with pipes extending downwards into the
liquid in
the lower tank, through which the water was sucked and pumped
back
into a reservoir from which it could be taken and, after filtration,
used
again.
If the pumps worked properly,
there should have been no overflow from
the lower tank, but if
that tank did overflow, the liquid flowing from it went
straight
into a channel, provided for the purpose, which led straight into
the
river. So if the pumps for some reason failed to operate
properly, the system
instituted by the Appellants made provision
for any overflow to go straight
into the river.
One of the two pumps worked
automatically, coming into operation when
the water in the lower
tank reached a certain level and switching itself off
when the
level dropped 3 feet 3 inches below the level at which it
would
overflow into the river. The other pump was manually
operated.
Evidence was given by a
consultant of the paper trade, a Mr. Evans, who
had been concerned
with the planning of the circulation of the water. He
3
said that one pump was
sufficient to keep the liquid from overflowing if
nothing went
wrong, and that the second pump was there in case anything
went
wrong with the first.
At 4.30 p.m. on Tuesday the 25th
November, 1969. an Assistant Inspector
employed by the Mersey and
Weaver River Authority saw that liquid was
overflowing from the
lower tank into the river at the rate, he estimated, of
250
gallons an hour. Both pumps were then working. He took
samples,
analysis of which showed that the liquid being discharged
had a biological
oxygen demand of 160 milligrammes per litre. The
River Authority only
permitted the discharge of an effluent with a
biological oxygen demand not
exceeding 20 milligrammes per litre.
Each of the pipes which carried
the water to the pumps was fitted with a
rose to prevent foreign
matter being sucked into the pump. The holes in
each rose were 3/4
of an inch in diameter.
Mr. Atkinson, a foreman employed
by the Appellants, testified that on
the 25th November he had
inspected the tanks at 8.15 a.m. and that one
pump was operating
then. He inspected the tanks again at 11.15 a.m. and
saw that the
level in the lower tank was rising so he switched on the second
pump.
He made another inspection at 1.15 p.m. and did not notice
any
difference in the level. He came back again at 3.45 p.m. and
the level in
the tank was the same despite the fact that both
pumps had been operating
since 11.15 a.m.
If Mr. Atkinson knew that if
nothing was wrong, one pump was sufficient
to cope with the flow
and to prevent an overflow, he surely should have
suspected that
something was seriously wrong when he found that both
pumps
operating for several hours had not lowered the level of the water.
A fitter employed by the
Appellants, a Mr. Courtney, stated that he had
inspected and
emptied the roses at the end of the pipes every week-end and
that
both pumps had been inspected by him during the week-end before
the
25th November. He said that he had then inspected the
impellers to the
pumps and had got his fingers in the vents.
After the samples were taken the
pumps were stopped and dismantled.
It was then found that
brambles, ferns and long leaves were wrapped around
each impeller
and that the vents of both pipes were blocked. Mr. Courtney
said
that he had installed the pumps and had been employed there
ever
since and that he had never before found such things in the
pumps.
If it be the case that the pumps
were properly inspected during the week-end
and were then in
proper order, the brambles and leaves must have got into
the
impellers on the Monday and Tuesday and, if the roses at the end
of
each pipe were in place, have been sucked through the 3/4 inch
holes in the
roses. It sounds improbable that this should have
happened with both pumps
in so short a time to such a degree that
both pumps were blocked but one
does not know, for the Case Stated
does not reveal, what conclusion, if any.
the magistrates came to
about this.
The Case Stated is unfortunately
in an unsatisfactory form. In paragraph
2 the magistrates said
that they found the following facts. One would expect
that to be
followed by a statement of the facts found, that is to say,
the
conclusions on questions of fact to which the justices had
come after hearing
the evidence. But paragraph 3 of the Case
merely sets out the evidence the
magistrates had heard and not
their conclusions thereon. Merely to set out
the evidence is no
substitute for findings of fact.
Paragraph 3
records that one witness said that the Appellants had taken
all
reasonable steps to make sure that water did not escape into the
river.
Did the magistrates accept this evidence and find as a fact
that all reasonable
steps had been taken or did they not do so?
The Case Stated leaves that
uncertain and were it not for the fact
that it is possible to reach a conclusion
in this appeal without
knowing whether that had or had not been found, 1
would have been
in favour of the case being sent back to the magistrates to
be
properly stated.
4
The Respondent, so the Case
states, contended that the Appellants had
caused polluting matter
to enter the river and that they " had not done every-
"
thing in their power to ensure that the machinery which should ensure
that
" the tanks should not allow any overflow into the River
had not work
" efficiently" (sic). Presumably what was
meant was that they had not
done everything to ensure that it had
not worked inefficiently.
The justices in the paragraph
numbered 7 in the Case (in fact paragraph 8)
said that they were
"of the opinion that the Appellants had caused the
"
polluting matter to enter the River by their failure to ensure that
the
" apparatus was maintained in a satisfactory condition to
do the job for
" which it was provided." One does not
know whether they were of the
opinion that that failure was due to
negligence on the part of the Appellants,
or their servants or
whether it was their view that the Appellants had caused
the
overflow without negligence as they had installed a system which
was
bound to lead to an overflow if the pumps for one reason or
another proved
inadequate for their task.
Mr. Glidewell for the Respondent
did not seek in this House to contend
that the justices'
conclusion involved a finding of negligence and to support
the
conviction on that ground. On the evidence given it is apparent
that
the justices might well have concluded that there was
negligence in not
appreciating by 3.45 p.m. that the pumps were
not working properly, and,
in view of the improbability that
sufficient debris to block the impellers and
the vents of both
pumps had been sucked in in the course of the Monday and
Tuesday,
that there had been negligence in the inspection at the week-end.
In view of the attitude taken by
the Respondent, though it may be that
the justices were in fact of
the opinion that there had been negligence, one
must treat this
case as one in which there was no finding of negligence on
the
part of the Appellants.
In the Divisional Court, Lord
Parker C.J. and Widgery L.J., as he then
was, were in favour of
dismissing the appeal. They found it unnecessary
to consider
whether the offence charged was an absolute offence. They
were
satisfied that the actions of the Appellants were a cause of
the pollution and
that in their opinion sufficed. Bridge J.,
dissenting, held that there could
be no criminal liability for
causing polluting matter to enter a stream unless
there was actual
knowledge on the part of the alleged offender or at least the
means
of knowledge that his act might be expected to lead to pollution.
In this House Mr. Drake for the
Appellants again contended that the
Appellants had not caused the
pollution ; that the section did not create an
absolute offence
and that the Appellants could not be convicted in the absence
of
knowledge or negligence on their part. He also contended that in a
section
which, like s.2(l), creates two offences, the fact that
knowledge is required
for one leads to the presumption that it is
also required for the other, in
other words, that s.2(l)(«)
should be read as if it said "if he knowingly
causes or
knowingly permits ". He also relied on the well-known
principle
that if the wording of a penal statute is capable of two
interpretations, that
most favourable to the accused should be
taken as the correct interpretation.
The first question I propose to
consider is, leaving the question of mens
rea on one side,
whether on the evidence the act or acts of the Appellants
caused
the pollution.
It's immediate cause was the
blocking of the impellers and vents.
The presence of the polluting
liquid on the bank of the river, and it would
appear, within a
foot or so of the river, was due to the acts of the Appellants.
The
provision of the settling tanks with an overflow channel from the
lower
tank leading directly to the river was directly due to their
acts. When the
works were operating, there was, under the system
they had instituted, bound
to be an overflow into the river unless
the pumps provided were of sufficient
capacity and working
sufficiently efficiently to prevent that happening.
5
If they had not installed any
pumps or only pumps of insufficient capacity
and an overflow into
the river had followed from the operation of the
works, I do not
think it could be suggested that their acts had not caused
the
overflow and consequent pollution. Does it make any difference if
they
had installed pumps of sufficient capacity and for some
reason the pumps
had broken down or were only able to pump a
fraction of what they should
have? I think not. It was the
operation of the works which led to the flow
of liquid to the
tanks. It was that operation which, with the system they
had
installed, led to the liquid getting into the river. The roses at the
end
of the intake pipes must have been fitted because it was
realised that there
was a risk that without them debris would be
sucked into and block the
pumps. The fact that despite them debris
was sucked in and prevented the
pumps from working properly shows
that that safeguard was insufficient and
the result was the same
as that which would have followed from the operation
of the works
if pumps of insufficient capacity had originally been installed.
In these circumstances I see no
escape from the conclusion that it was the
acts of the Appellants
that caused the pollution. Without their acts there
would not have
been this pollution. It was their operation of their works
that
led to the liquid getting into the tanks and their failure to ensure
that
the pumps were working properly that led to the liquid
getting into the river.
I therefore think that the
justices conclusion on the facts was right.
Then it is said that even if
that was so, there should not have been a
conviction for the
offence charged was not an absolute offence. As my noble
and
learned friend. Lord Diplock, said in Sweet v. Parsley
[1970] AC 132
at p. 162: —
" the expression ' absolute
offence' ... is an imprecise phrase
" currently used to
describe an act for which the doer is subject to
" criminal
sanctions even though when he did it he had no mens rea,
"
but mens rea itself also lacks precision . . ."
In this case it was argued that
it was an essential ingredient of the offence
that the Appellants
should—the case being dealt with as if there was
no
negligence—have intended the entry of the polluting
matter into the river,
that is to say, that they should have
intended the commission of the offence.
I cannot think that that
was the intention of Parliament for it would mean
that a burden of
proof would rest on the prosecution that could seldom be
discharged.
Only if the accused had been seen tipping the polluting material
into
a stream or turning on a tap allowing a polluting liquid to flow into
a
stream or doing something of a similar character could the
burden be
discharged. Parliament cannot have intended the offence
to be of so limited
a character. Ordinarily all that a river
authority can establish is that a
discharge has come into a stream
from a particular source and that it is of
a polluting character.
But the Act does not say that proof of that will
suffice. If that
were so, the Act would indeed create an absolute offence.
It has
also to be proved that the accused caused or knowingly permitted
the
pollution.
This Act is, in my opinion, one
of those Acts to which my noble and learned
friends. Lord Reid (at
p. 149) and Lord Diplock (at p. 163) referred in Sweet
v.
Parsley (supra) which, to apply the words of Wright J. in
Sherras v. De
Rutzen [1895] 1 QB 918, deals with acts
which "are not criminal in any
" real sense, but are
acts which in the public interest are prohibited under
" a
penalty ".
What, then,
is meant by the word " caused " in the subsection? If a
man
intending to secure a particular result, does an act which
brings that about,
he causes that result. If he deliberately and
intentionally does certain acts
of which the natural consequence
is that certain results ensue, may he not
also be said to have
caused those results even though they may not have
been intended
by him? I think he can, just as he can be said to cause the
result
if he is negligent, without intending that result.
6
I find support for my view in the observations of Bowen
L.J. in Kirkheaton
District Local Board v. Ainley, Sons &
Co. [1892] 2Q.B. 274. He said at
p. 283 :
" It appears to me that any person causes the flow
of sewage into a
" stream . . . who intentionally does that
which is calculated according
" to the ordinary course of
things and the laws of nature to produce
" such flow."
We have not here to consider what the position would be
if pollution was
caused by an inadvertent and unintentional act
without negligence. In such
case it might be said that the doer of
the act had not caused the pollution
although the act had caused
it. Here the acts done by the Appellants were
intentional. They
were acts calculated to lead to the river being polluted
if the
acts done by the Appellants, the installation and operation of
the
pumps, were ineffective to prevent it. Where a person
intentionally does
certain things which produce a certain result,
then it can truly be said that
he has caused that result, and here
in my opinion the acts done intentionally
by the Appellants caused
the pollution.
I now turn to the contention that the subsection should
be read as if the
word " knowingly " appeared before "
causes ". Whether the inclusion of
that word before "
permits" makes any difference to the meaning of
"permits",
is, I think, open to doubt, for as Lord Goddard C.J. said in
Lomas
v. Peek [1947]1 2 All E.R. 574: —
" If a man permits a thing to be done, it means
that he gives permis-
" sion for it to be done, and if a man
gives permission for a thing to
" be done, he knows what is
to be done or is being done."
(See also per Lord Diplock in Sweet v. Parsley
(supra) at p. 162.)
If the insertion of " knowingly " before "
causes " meant only that the
acts which produced the result
must be intentional, then that insertion would
not, in my view,
add anything to the meaning to be given to the subsection.
If, on
the other hand, it meant that the accused must know what the
end
result would be, then it imports that the requirement of a
guilty mind accom-
panying the acts.
In this connection reliance was placed on Derbyshire
v. Houliston [1897]
1Q.B. 772. That was a decision on a
very different statute and I do not
think that it constitutes any
authority for the proposition that in this Act
s.2(l)(a)
must be read as if the word " knowingly " appeared before "
causes ".
I therefore reject this contention.
In support of the contention that the offence in
question is an absolute
one, the Appellants relied on the last
part of s.2(l) which provides that a
local authority shall be
deemed to cause or knowingly permit pollution
which passes into a
stream from a sewer or sewage disposal works of theirs
where the
local authority were bound to receive the polluting matter into
the
sewer or sewage disposal unit or had consented to do so. This
was
obviously intended to deal with a special case and to prevent
a local authority
from being able to contend that in such
circumstances they had not caused
the pollution. I do not consider
that it throws any light on the meaning to be
given to s.2(l)(a).
The function of the courts is to interpret an Act "
according to the intent
of them that made it" (Coke 4 Inst:
330). If the language of a penal
statute is capable of two
interpretations, then that most favourable to the
subject is to be
applied. Having regard to the nature of the Rivers (Preven-
tion
of Pollution) Act, 1951, the mischief with which it was intended to
deal
and the fact that it comes within the category of Acts to
which my noble and
learned friends, Lord Reid and Lord Diplock,
referred in Sweet v. Parsley
(supra) I do not think
that the subsection is capable of two interpretations
or that it
was intended to be interpreted or should be interpreted as making
the
causing of pollution only an offence if the accused intended to
pollute.
For these reasons I would dismiss the appeal with costs.
7
Lord
Pearson
MY LORDS,
The Appellants have their Mount
Sion Works at Radcliffe beside the River
Irwell in Lancashire.
Water is drawn from the river along a goit and is
taken into the
works and used in processing manilla fibres for use in paper-
making.
The first stage of the processing produces a very strong
effluent
which is removed by tankers and disposed of elsewhere: no
question arises
with regard to that effluent. At the second stage
of the processing the fibres
are washed, and this leaves polluted
washing water, which is taken down to
two settling tanks on the
banks of the river. After some purification by
settling, this
water is re-circulated and used again in the processing. There
are
two pumps which draw water out of the settling tanks: one of
these
operates automatically in the sense that it switches itself
on whenever the
water in one of the settling tanks has risen to a
certain level: the other is a
standby pump which can be switched
on manually when the automatic
pump is not keeping down the level
of the water. At the bottom of the
intake pipe of each pump there
is a rose, similar in principle to the rose in
a watering can,
with holes of three quarters of an inch diameter, intended to
keep
out foreign matter while admitting a sufficient inflow of water. As
the
settling tanks are beside the river, it must follow that, if
the pumps fail to
keep down the level of the water and the rising
water overflows, the overflow
must be into the river, and it is
polluted water.
On the 25th November, 1969, the
processing plant had been in use for
about a year, and it was
being operated on that day. The foreman inspected
the tanks at
8.15 a.m., and found the automatic pump working and every-
thing
normal. When he inspected the tanks again at 11.30 a.m., he
found
that the water level had risen and he switched on the
standby pump. At
1.15 p.m., and again at 3.45 p.m., he found the
water level unchanged with
both pumps working. But at 4.30 p.m.,
the River Authority Inspector visited
the tanks and found that
there was an overflow of polluted water from them
into the river
at a rate which he estimated at 250 gallons per hour. The
Inspector
took a sample of the polluted water immediately before it entered
the
river and on analysis it was found that the biochemical oxygen
demand
on this sample was 160 milligrams per litre whereas, when
the River Authority
allowed a discharge of effluent, the
biochemical oxygen demand should be
no more than 20 milligrams per
litre.
What had happened was that in
each of the pumps the impeller had become
clogged with foreign
matter—brambles, bracken or ferns and long leaves—
which
had entered the intake pipe through the holes in the rose.
There was evidence, accepted by
the magistrates, from the Appellants'
fitter to the effect that he
had inspected the rose and the impeller and emptied
the rose once
a week and had done so on the Sunday preceding the 25th
November,
1969, which was a Tuesday: and that the rose had never been
blocked
before or since that date ; but on that date he had found
brambles,
ferns and long leaves wrapped around the impeller and
the vents blocked ;
he had never found such things before in the
pumps.
There was also expert evidence,
accepted by the magistrates, that the
Appellants had taken all
reasonable steps to make sure water did not escape
into the river.
The expert witness did say, however, that an alarm system
would be
desirable but there was not one on the 25th November, 1969.
The
Appellants' general manager said that as an extra aid to their
foreman an
alarm system, a probe actuating a bell, was installed
in December, 1969,
but that this alarm system was not essential as
two pumps were adequate to
keep the effluent out of the River
Irwell and one pump was normally more
than adequate. The general
manager also said that neither he nor anyone
in authority had
knowledge of the discharge of effluent until informed by
the
Inspector. The foreman gave evidence of his regular inspection
of the tanks.
He said that the level of the water in the tanks
depended on the amount of
processing going on.
8
The magistrates said in
paragraph 7 of the Case Stated: "We were of
" the
opinion that the Appellants had caused the polluting matter to
enter
" the River by their failure to ensure that the
apparatus was maintained in
" a satisfactory condition to do
the job for which it was provided. We
" accordingly convicted
the Appellants."
Counsel have stated that the
Divisional Court with the assent of counsel
assumed that the
magistrates had not made any finding of negligence.
Although
perhaps a different view might have been taken of the evidence,
I
think, having regard to the findings of fact, that the
assumption has to be
made.
The relevant enactment is
section 2(l)(a) of the Rivers (Prevention of
Pollution)
Act, 1951, providing that: " Subject to this Act, a person
commits
" an offence punishable under this section—(a)
if he causes or knowingly
" permits to enter a stream any
poisonous, noxious or polluting matter ".
The question is
whether the magistrates could properly find that the Appel-
lants
caused the polluted water to enter the River Irwell.
It has been contended that the
prosecution had to prove mens rea on the
part of the
Appellants, and consequently the Appellants were wrongly
convicted
because, even if they caused the polluted water to enter the
river,
they did not do so intentionally or knowingly. In my
opinion, this contention
fails. First, in the wording of the
enactment there is the contrast between
" causes " and "
knowingly permits ", raising the inference that knowledge
is
not a necessary ingredient in the offence of " causing ".
Secondly mens
rea is generally not a necessary ingredient
in an offence of this kind, which
is in the nature of a public
nuisance. In Sherras v. De Rutzen [1895] 1 Q.B.
918
Wright J. said at p. 921-2: "There is a presumption that mens
rea,
" an evil intention, or a knowledge of the
wrongfulness of the act, is an
" essential ingredient in
every offence ; but that presumption is liable to be
"
displaced either by the words of the statute creating the offence or
by the
" subject-matter with which it deals, and both must be
considered: Nichols
" v. Hall (L.R. 8 C.P. 322)
... the principal classes ... of exceptions may
" perhaps be
reduced to three. . . . Another class comprehends some, and
"
perhaps all, public nuisances: Reg. v. Stephens (L.R. 1
Q.B. 702) where the
employer was held liable on indictment for a
nuisance caused by workmen
without his knowledge and contrary to
his orders ; and so in Rex v. Medley
" (6 C. &
P. 292) and Barnes v. Akroyd (L.R. 7 Q.B. 474)."
In R. v.
Medley and Others there was an indictment
against the directors and other
officers of a Gas Company for
discharging the refuse of gas manufacture
into the Thames. Denman
CJ. in summing-up said to the jury: " It is said
" that
the directors were ignorant of what had been done. In my judgment
"
that makes no difference ; provided you think that they gave
authority to
" Leadbeter to conduct the works they will be
answerable."
There is an authority on a
similar enactment. In Moses v. The Midland
Railway
Company [1915] 113 L.T. 451 the railway company were convey-
ing
on their line a private owner's tank wagon containing creosote, and
on
the journey the creosote began to leak out from a defective tap
and when
this was discovered the train was stopped and the defect
was remedied. Some
of the creosote which leaked out found its way
into a tributary of a salmon
river. The railway company were
prosecuted under section 5 of the Salmon
Fishery Act, 1861, where
the relevant wording was: "Every person who
" causes or
knowingly permits to flow, or puts or knowingly permits to be
"
put, into any waters containing salmon, or into any tributaries
thereof,
" any liquid or solid matter to such an extent as to
cause the waters to
" poison or kill fish, shall incur the
following penalties. . . ." Lord
Reading C.J. dealt only with
causation, Avory J. dealt with mens
rea at the beginning of
his judgment, where he said: " I have had some
" doubt
about this case, because when it was first read to us I
certainly
understood it to mean that the creosote which caused the
damage in fact
" escaped from this tank while the train was
pulled up and while the opera-
" tions were going on for the
purpose of repairing it. If that had been clearly
" the state
of facts I should have hesitated before agreeing with the view
"
that under these circumstances the railway company were not causing
the
9
" liquid to flow into the
stream within the meaning of this section, because
" it
appears to me to be not one of those cases where it is necessary to
prove
" any mens rea. It is an absolute prohibition,
and the person liable is the
" person who in fact causes the
liquid to flow; and I do not think it is
" necessary to show,
in the words of one of the judgments quote to us, that
" the
person was intentionally causing the liquid to flow."
I think the judgments of Lord
Esher and Bowen L.J. in Kirkheaton District
Local Board v.
Ainley, Sons A Co. [1892] 2 QB 274 at pp. 281 and 283
tend
to show that mens rea was not a necessary ingredient in the
offence of
causing sewage to fall or flow into a stream contrary
to the Rivers Pollution
Prevention Act 1876. Lord Esher said at p.
281: " The sewage matter starts
" from their premises by
their volition in such a way that it must go through
" a
sewer, which, by the natural process of gravitation, will carry it
into the
" stream. Reading the words of the Act according to
their ordinary meaning,
" did or did not the defendants cause
the sewage, which they thus sent from
" their premises, to
flow into the stream? It seems to me that they did.
" Unless
they had done what they did, it would not have flowed into the
"
stream. They seem to me to be the causa causans, or, at any
rate, the causa
" sine qua non"
The view that mens rea is
not a necessary ingredient in an offence of this
kind seems to me
to be consistent with, and supported by, what was said
in Sweet
v. Parsley [1970] AC 132 by Lord Pearce at p. 156 EFG
and by
Lord Diplock at p. 163 DEF.
The Appellants' other contention
is that they did not cause the polluted
water to flow into the
river. I think their main grounds for this contention
are that
they did not intend the polluted water to flow into the river,
they
did not know it was happening and (according to the
assumption that has
been made) it did not happen by reason of any
negligence on their part.
On the general question of
causation there is an illuminating
passage in the speech of Lord
Shaw of Dunfermline in Leyland Shipping
Co. v. Norwich Union
Fire Insurance Society [1918] A.C. 350. He said at
p. 369: "
To treat proxima causa as the cause which is nearest in time
is
" out of the question. Causes are spoken of as if they
were as distinct from
" one another as beads in a row or
links in the chain, but—if this meta-
" physical topic
has to be referred to—it is not wholly so. The chain of
"
causation is a handy expression, but the figure is inadequate.
Causation
" is not a chain, but a net. At each point
influences, forces, events, precedent
" and simultaneous,
meet; and the radiation from each point extends
" infinitely.
At the point where these various influences meet it is for the
"
judgment as upon a matter of fact to declare which of the causes
thus
" joined at the point of effect was the proximate and
which was the remote
" cause."
This passage may have been
partly inspired by the argument of R. A.
Wright K.C. (as he then
was) at p. 352-3.
In Yorkshire Dale Steamship
Company Ltd. v. Minister of War Transport
[1942] A.C.
691 at p. 698 Viscount Simon L.C. said "The interpretation to
"
be applied does not involve any metaphysical or scientific view of
causation.
" Most results are brought about by a combination
of causes, and a search
" for ' the cause ' involves a
selection of the governing explanation in each
" case."
Lord Wright said at p. 706: " This choice of the real or
efficient
" cause from out of the whole complex of the facts
must be made by apply-
" ing commonsense standards."
In Cork v. Kirby
Maclean Ltd. [19521 2 All E.R. 402 at p. 407 Denning
L.J.
said: " It is always a matter of seeing whether the particular
event was
" sufficiently powerful a factor in bringing about
the result as to be properly
" regarded by the law as a cause
of it."
When one sets out to select in
this case from the " whole complex of
" the facts "
the " governing explanation " of the overflow of polluted
water
into the river there are a number of factors to be taken
into account. These
include the absence of intention, the absence
of knowledge and the assumed
10
absence of negligence on the
part of the Appellants. It would have been
easier to decide that
they caused the overflow if they had intended it or
known of it
when it was happening or brought it about by their negligence.
Nevertheless, I think that the
magistrates and the majority of the Divisional
Court were right in
holding that the overflow was caused by the activities of
the
Appellants. Those were positive activities and they directly
brought
about the overflow. What other cause was there? There was
no intervening
act of a trespasser and no act of God. There was
not even any unusual
weather or freak of nature. Autumn is the
season of the year in which dead
leaves, ferns, pieces of bracken
and pieces of brambles may be expected to
fall into water and sink
below the surface and if there is a pump to be sucked
up by it.
In my opinion, the activities of
the Appellants were the cause of the over-
flow of polluted
water into the river. It is not necessary for the purposes
of this
case to decide whether a conviction should be upheld if the
activities
of a defendant were to be regarded as only a cause
of such an overflow.
Subject to reservation of that question I
agree with the judgments of the
majority in the Divisional Court.
I would dismiss the appeal.
Lord Cross of Chelsea
MY LORDS,
1 have found this a difficult
case. At one time I was inclined to agree
with the dissenting
judgment of Bridge J. ; but in the end I have come to
the
conclusion that the appeal should be dismissed.
The Appellants in the course of
their business cause large quantities of
polluted effluent to flow
into a settling tank on the bank of the River Irwell.
The tank
would have inevitably overflowed with the result that the
effluent
would have entered the river had not the Appellants
installed two pumps to
keep the level of the water in the tanks
low enough to prevent any overflow.
At the base of the pumps there
are or were metal " roses " with holes of a
diameter of
3/4 inch designed to allow water to reach the pump freely but
to
prevent any solid matter which might get into the tank from
passing through
the rose and coming into contact with the
impeller.
On Tuesday 25th November, 1969,
the pumps failed to prevent the settling
lank from overflowing,
the reason for the failure being—as was
subsequently
discovered—that a quantity of brambles, leaves
and other vegetable matter
had found its way through the holes in
the " roses " and was wound round
the impellers. The
evidence, which the justices accepted, was to the effect
that the
" roses " had been regularly inspected each week-end since
they had
been installed a year previously, that no vegetable
matter had been in them
when the pumps were inspected a few days
before the overflow, and indeed
that no vegetable matter had ever
been found in the pumps before. How
all these brambles and leaves
had found their way through the roses in the
course of the two or
three days before the 25th November was an unsolved
mystery.
These being the facts, did the
Appellants commit the offence created by
s.2 of the Rivers
(Prevention of Pollution) Act, 1951, of "causing" the
polluted effluent to enter the
river? Bridge J. said—and I agree with him
that the contrast drawn in the
section between " causing " and " knowingly
permitting
" shows that a man cannot be guilty of causing polluting
matter
to enter a stream unless at the least he does some positive
act in the chain
of acts and events leading to that result. I
cannot, however, follow him
when he goes on to say that it is also
necessary if the man is to be held to
have " caused "
the result that he should have known or have had the means
of
knowledge that his act might be expected to lead to it. Suppose that
the
contractor whom the Appellants had employed to install these
works on the
bank of the Irwell had provided a defective pump with
the result that when11
the Appellants operated their
plant for the first time the tank had overflowed
—surely
they could fairly be said to have " caused " the pollution
of the
river even though they neither knew nor had any means of
knowing that their
act in setting the plant in operation would
lead to that result? But, of
course, the Appellants can say—and
here lies the strength of their case—
that the justices have
not found that the pumps, albeit they had such wide
holes in the
roses, were unsuitable and that they have accepted the evidence
of
their employees as to the frequency and thoroughness of their
inspections.
This enables them to advance the argument which was
accepted by Bridge J.
that the unexplained presence of this
quantity of vegetable matter wrapped
round the impellers should be
regarded as a separate cause of the pollution
of the stream which
relieves the Appellants from the responsibility for it. " If
"
it had been shown that the brambles had been put there by a
trespasser " so
the argument runs—"the Appellants
could not be held to have 'caused'
" the overflow. For all
that one knows they may have been put there by
" a
trespasser. What difference does it make that one cannot say how
they
" came there providing that the Appellants have not been
shown to be in
" any way to blame for their presence?"
This argument is plausible—but
I think fallacious. The
Appellants did not advance any evidence to show
that the brambles
had been placed there by a trespasser or that the
" inanimate
forces "—to use the words of Bridge J.—which brought
them
there were in the category of acts of God—analogous to
the destruction of
the pumps by lightning or the flooding of the
tank by a storm of altogether
unexampled severity and duration.
All that the evidence shows is that
despite the false sense of
security into which the Appellants had been lulled
by their
experience over the past twelve months, vegetable matter was in
fact
liable to collect quite quickly inside the roses and that, although
it may
not be fair to blame them for not inspecting the roses more
often than once
a week, if they did not have more frequent
inspections they were running the
risk of " causing "
polluting effluent to enter the river. It was not for the
Respondents
to prove that the Appellants had been negligent. The
Appellants
having started to operate their plant on that day could
only escape being
held to have caused polluted effluent to enter
the river if they proved that the
overflow of the tank had been
brought about by some other event which
could fairly be regarded
as being beyond their ability to foresee or control.
1 would, therefore, dismiss the
appeal.
Lord Salmon
My lords,
I agree that this appeal should
be dismissed and I wish to add only a few
brief observations of my
own. It is undisputed that the river on the banks
of which stands
the Appellants' Mount Sion Works was polluted by con-
taminated
effluent which flowed from those works into the river. The
vital
question is whether the Appellants caused that pollution
within the meaning
of section 2 (1) of the Rivers (Prevention of
Pollution) Act 1951. The nature
of causation has been discussed by
many eminent philosophers and also by a
number of learned judges
in the past. I consider, however, that what or who
has caused a
certain event to occur is essentially a practical question of
fact
which can best be answered by ordinary commonsense rather
than abstract
metaphysical theory.
It seems to me that, giving the
word " cause " its ordinary and natural
meaning, anyone
may cause something to happen, intentionally or negligently
or
inadvertently without negligence and without intention. For example,
a
man may deliberately smash a porcelain vase ; he may handle it
so negligently
that he drops and smashes it; or he may without
negligence slip or stumble
against it and smash it. In each of
these examples, no less in the last than in
the other two, he has
caused the destruction of the vase.
The Appellants clearly did not
cause the pollution intentionally and we
must assume that they did
not do so negligently. Nevertheless, the facts so
fully and
clearly stated by my noble and learned friend Viscount Dilhorne to12
my mind make it obvious that the
Appellants in fact caused the pollution.
If they did not cause it,
what did? There was no intervening act of a third
party nor was
there any act of God to which it could be attributed. The
Appellants
had been responsible for the design of the plant; everything
within
their works was under their control; they had chosen all the
equip-
ment. The process which they operated required contaminated
effluent being
pumped round their works until it came to rest in
an open tank which they
sited on the river bank. If the pumps
which they had installed in this tank
failed to operate
efficiently the effluent would necessarily overflow into the
river.
And that is what occurred. It seems plain to me that the
Appellants
caused the pollution by the active operation of their
plant. They certainly did
not intend to cause pollution but they
intended to do the acts which caused it.
What they did was
something different in kind from the passive storing of
effluent
which could not discharge into the river save by an act of God or,
as
in Impress (Worcester) Ltd. v. Rees [1971] All
E.R. 357 by the active inter-
vention of a stranger, the risk of
which could not reasonably have been
foreseen.
The Appellants relied strongly
upon Moses v. Midland Railway Company
31 T.L.R. 440.
In that case a private owner's tank wagon filled with creosote
formed
part of a train being driven by the defendants. At the beginning
of
the journey the wagon was subjected to careful examination by
the defendants
which revealed no defect. There was, however, a
latent defect in one of its
taps. Whilst the train was travelling
along the banks of a river this defect
caused creosote to leak
into the river and polluted it so that many fish were
killed. On a
charge under section 5 of the Salmon Fisheries Act, 1861,
the
justices held that the defendants had not caused the
pollution, and that
decision was upheld by the Divisional Court.
The facts were strikingly
different from those of the present
case. The wagon was not owned by the
defendants., they were in no
way responsible for its design or maintenance;
they exercised no
control over the defective tap ; and they had no knowledge
or
means of knowledge of the latent defect which caused the leak.
The
decision, which to my mind is not relevant to this appeal, may
well have
been correct on its facts although the judgments as
reported are not very
satisfactory.
The Appellants contend that even
if they caused the pollution still they
should succeed since they
did not cause it intentionally or knowingly or
negligently.
Section 2(1)(a) of the Rivers (Prevention of Pollution)
Act, 1951,
is undoubtedly a penal section. It follows that if it
is capable of two or
more meanings then the meaning most
favourable to the subject should be
adopted. Accordingly, so the
argument runs, the words " intentionally " or
"
knowingly " or " negligently " should be read into the
section immediately
before the word " causes ". I do not
agree. It is of the utmost public
importance that our rivers
should not be polluted. The risk of pollution,
particularly from
the vast and increasing number of riparian industries, is
very
great. The offences created by the Act of 1951 seem to me to
be
prototypes of offences which " are not criminal in any
real sense, but are
" acts which in the public interest are
prohibited under a penalty ", Sherras
v. De Rutzen [1895] 1 QB 918 per Wright J. at p. 922 referred to with
approval by my
noble and learned friends, Lord Reid and Lord Diplock, in
Sweet
v. Parsley [1970] AC 132 at pp. 149 and 162. I can see
no valid
reason for reading the word " intentionally ",
" knowingly " or " negligently "
into section
2(l)(a) and a number of cogent reasons for not doing so. In
the
case of a minor pollution such as the present, when the
justices find that
there is no wrongful intention or negligence on
the part of the defendant, a
comparatively nominal fine will no
doubt be imposed. This may be regarded
as a not unfair hazard of
carrying on a business which may cause pollution
on the banks of a
river. The present Appellants were fined £20 and ordered
to
pay in all £24 costs. I should be surprised if the costs of
pursuing this
appeal to this House were incurred for the purpose
of saving these Appellants
£43.
If this appeal succeeded and it
were held to be the law that no conviction
could be obtained under
the Act of 1951 unless the prosecution could dis-
charge the often
impossible onus of proving that the pollution was caused
13
intentionally or negligently, a
great deal of pollution would go unpunished
and undeterred to the
relief of many riparian factory owners. 'As a result,
many rivers
which are now filthy would become filthier still and many
rivers
which are now clean would lose their cleanliness. The
Legislature no doubt
recognised that as a matter of public policy
this would be most unfortunate.
Hence section 2(1)(a) which
encourages riparian factory owners not only to
take reasonable
steps to prevent pollution but to do everything possible to
ensure
that they do not cause it.
I do not consider that the
Appellants can derive any comfort (as they
seek to do) from the
inclusion in section 2(l)(a) of the words "knowingly
"
permits" nor from the deeming provision against local
authorities in
relation to sewage escaping into a river from
sewers or sewage disposal units.
The creation of an offence in
relation to permitting pollution was probably
included in the
section so as to deal with the type of case in which a man
knows
that contaminated effluent is escaping over his land into a river
and
does nothing at all to prevent it. The inclusion of the word "
knowingly "
before " permits " is probably otiose
and, if anything, is against the Appel-
lants, since it contrasts
with the omission of the word " knowingly " before
the
word " causes". The deeming provision was probably included
to
meet what local authorities might otherwise have argued was a
special case
and cannot, in my opinion, affect the plain and
unambiguous general meaning
of the word " causes ".
For these reasons I would
dismiss the appeal with costs.
324604 Dd 197074 100 4/72 St.S.
