Empress Car Company (Abertillery) Ltd. v National Rivers Authority

The House of Lords upheld a conviction under section 85(1) of the Water Resources Act 1991 for "causing" polluting matter to enter controlled waters. The court held that the prosecution must identify a positive act by the defendant but that this need not be the immediate cause of the escape: maintaining tanks, lagoons or systems which allow pollution to occur can constitute a positive act. The word "causing" is to be given a common-sense meaning and may include antecedent acts where the defendant's operation created the situation from which pollution flowed.

The Lords rejected an approach that would treat any deliberate act of a third party as automatically breaking the chain of causation. Instead, where the third-party act or natural event is an ordinary or normal occurrence (for example vandalism, leakage, or clogging by vegetation) it will not necessarily negative causation; but where the intervening act or event is extraordinary, it may do so. The distinction between ordinary and extraordinary events is a question of fact for the tribunal to decide.

Background and facts:

• The appellant company kept diesel in a tank on premises draining to the River Ebbw Fach. An extension pipe and an unlocked tap allowed fuel to be drawn into an external drum outside the bund. On 20 March 1995 the tap was opened by a person unknown and the tank was emptied, the diesel overflowing into the yard and via a drain into the river.
• The company had been convicted by the local justices, the decision was upheld by the Crown Court and the Divisional Court on a case stated, and the matter came to the House of Lords on certification of a question of general public importance.

Nature of the prosecution and relief sought: This was a criminal prosecution seeking to convict for an offence under section 85(1) of the Water Resources Act 1991 (causing or knowingly permitting polluting matter to enter controlled waters).

Issues framed: (i) whether the term "causing" requires a positive act by the defendant and if so what counts as a positive act; and (ii) whether the company in the circumstances had "caused" the pollution given the intervention of an unknown third party who opened the tap.

Procedure: The facts were set out in a case stated from the Divisional Court after conviction on appeal from the justices. The Divisional Court certified the issue to the House of Lords.

Court's reasoning: The House held that "causing" requires that the defendant did something rather than merely failed to prevent the escape, but that what counts as doing something should not be given an unduly narrow meaning: maintaining tanks, operating systems or providing inadequate defences can be "doing". Causation is to be decided by common sense directed to the statutory purpose; the existence of another cause (such as a third party or natural event) does not necessarily negate the defendant's causal contribution. The relevant legal distinction is whether the intervening act or event is in the general run of things (ordinary and familiar) or is extraordinary; ordinary interventions will not necessarily break the causal link. The court therefore concluded there was sufficient evidence for the tribunal properly to find the company had caused the pollution.

Wider context: The decision clarifies the law on strict liability offences under section 85(1), emphasising a common-sense approach to causation and limiting the role of foreseeability as used in negligence: strict liability does not require proof of fault but does require an identifiable act or omission by the defendant which caused the escape in the statutory sense.

Appeal dismissed. The House held that the prosecution must identify a positive act by the defendant but that maintaining a tank and creating a situation from which pollution can escape can constitute such an act; causation is a common-sense question and a third-party act will not necessarily negative causation if it is of an ordinary kind (e.g. vandalism or leakage) rather than an extraordinary event.

Convicted by Tredegar justices; appeal to the Crown Court sitting at Newport, Gwent (His Honour Judge Crowther Q.C.) dismissed; appeal to the Divisional Court by way of case stated dismissed and a question of general public importance certified; further appeal to the House of Lords ([1998] UKHL 5).