Express Ltd. (t/a Express Dairies Distribution) v Environment Agency

For an offence of causing polluting matter to enter controlled waters, causation is not defeated merely because an unusual event intervenes. The question is whether the defendant’s acts caused the entry, applying common sense to whether any intervening event was an ordinary or extraordinary occurrence.

Where a statutory emergency defence refers to an entry caused in order to avoid danger to life or health, the court must examine the act in the causal chain which actually caused the entry. The defence is not confined to the reason why the matter was initially discharged. It may apply where that causative act was performed during an emergency to save life or health.

Express Limited was convicted by the West Mercia Justices of causing polluting matter to enter controlled waters, contrary to Water Resources Act 1991, section 85(1) and (6). Approximately 4,000 litres of milk escaped from a tanker after a tyre blow-out caused components of the vehicle to damage and shear the delivery pipe. The milk entered a brook through roadside drains.

The company appealed by way of case stated. The principal issues were whether the events broke the chain of causation and whether the emergency defence in section 89(1) applied where the act causing entry was performed to avoid danger to life or health.

1. Appeal allowed to the extent stated. The conviction was ordered to be quashed unless the Environment Agency required remission to the Justices within the specified period. The company was awarded a Defendant’s Costs Order for costs in the High Court and below.

2. The offence under section 85(1) concerns causing an entry, which involves an act or chain of operations. It is distinct from knowingly permitting pollution. Applying the guidance in Environment Agency v Empress Car Company (Abertillery) Ltd [1999] 2 AC 22, the Justices had to identify what the defendant did and decide whether it caused the pollution. An intervening act or event defeats causation only where it is extraordinary rather than an ordinary occurrence. That is a question of fact and degree.

3. The tyre blow-out, the resulting damage to the tanker, and the driver’s actions formed one causal chain arising from the operation of the tanker on the road. A tyre blow-out, although rare, could be regarded as an event in the ordinary run of things. There was evidence on which the Justices could find that the company caused the milk to enter the brook. The chain of causation was not broken.

4. The statutory defence in section 89(1)(a) is concerned with the entry caused, not with any separate discharge. The words requiring that the entry be caused in an emergency in order to avoid danger to life or health import a purposive connection. The court may focus on the act in the causal chain which actually caused the entry. On the assumed facts, the driver’s act of pulling onto the hard shoulder could have been performed in an emergency to save life or health.

5. The Justices had asked the wrong question by focusing on whether the discharge itself occurred to preserve life or health. The answer to the question concerning whether the statutory defence was available was that it was available where the person’s act causing the entry was done in an emergency in order to save life or health. The question whether the release was itself an emergency therefore did not arise.

High Court (Administrative Court): The appeal by way of case stated from the West Mercia Justices’ conviction was allowed to the extent that the conviction was quashed unless the matter was remitted for further consideration of the remaining elements of the statutory defence.