Environment Law Bulletin - Institute of Environmental Management ...

HELEN HARRISONhelen.harrison@cmck.comA selection of recentcases in environmentand health & safety law“This latter argumentwas dismissed by theHigh Court which ruledthat there had been nobreak in the chain ofcausation.”Water pollutionAn Express Dairies Distribution milk tankerwas travelling on the M25 motorway whena tyre blowout culminated in damage to adelivery pipe and the escape of milk fromthe tanker. The milk entered drains on thehard shoulder of the motorway which feddirectly into controlled waters. Thecompany was prosecuted by theEnvironment Agency for causing pollutingmatter to enter controlled waters, anoffence under section 85(1) of the WaterResources Act 1991. The magistrates heldthat Express Dairies could not rely on thedefence provided by section 89(1) of the1991 Act, that the polluting entry was‘caused or permitted … in an emergency inorder to avoid danger to life or health’because this was limited to situations inwhich an entry occurred to preserve life orhealth. In this case, the real cause of theentry of the pollutant was the tyre blowoutand not the action of the driver in pullingonto the hard shoulder to avoid danger tolife or health. Express Dairies appealed,arguing that the justices had erred in theirconstruction of the defence. The companyalso argued that, following the authority ofEnvironment Agency v Empress CarCompany [1998] 1 All ER 481, thesequence of events from the blowout tothe pollution had been so extraordinarythat the chain of causation had beenbroken and no offence had therefore beencommitted. This latter argument wasdismissed by the High Court which ruledthat there had been no break in the chainof causation. The tyre blowout could notbe considered to be ‘extraordinary’. On thecontrary, it was an ordinary event and theresulting events had followed from it. Theuse of ‘extraordinary’ in Empress CarCompany referred to the intervention of athird party or a natural event. ExpressDairies could however rely on the defenceto causing water pollution provided bysection 89(1) which, on its true construction,was available to a person who actedin an emergency to preserve life or health.It was not limited to situations in which thedischarge itself was caused to preserve lifeor health. The concept of ‘causing’ entrywas broader than that of ‘discharge’ so itwas possible to consider the chain ofcausation and determine whether theaction that had caused the entry of thepollutant had been taken to avoid dangerto life or health. The defence was thereforeavailable to the defendant in this case andthe conviction quashed.(Express Dairies Distribution v Environment Agency, AllER D 393, 27 February 2003)Fines and costs of £119,750 were imposedon Henkel Ltd after the chemical companypleaded guilty to eight separate waterpollution and integrated pollution controloffences under section 85 of the WaterResources Act 1991 and section 23 of theEnvironmental Protection Act 1990. Theprosecution followed several incidents,including one in which two tonnes ofsodium nitrite were discharged into a dyke.This was not reported to the EnvironmentAgency for two weeks. The costs awardedagainst the company totalled £21,750.(Environment Agency News Release, 21 March 2003)Thames Water Utilities Ltd was fined twicein recent months for polluting watercourseswith sewage. In January 2003, thecompany pleaded guilty to an offenceunder section 85 of the WaterResources Act 1991 after foul sewage45Environment Law BulletinApril 2003