Water pollution (see also: Procedure) - Empress Car Company (Abertillery) Limited v National Rivers Authority (6 February 1998) House of Lords

United Kingdom
Empress Car Company (Abertillery) Limited maintained a diesel tank on their premises in Abertillery. In March 1995 the outlet from the tank was opened by a person unknown and the contents of the tank flowed into the yard and drained into the River Ebbw Fach. The company was charged under Section 85(1) of the Water Resources Act 1991 which provides that it is an offence to cause or knowingly permit any poisonous, noxious or polluting matter or solid waste to enter controlled waters. The company was convicted, and their appeals to the Crown Court and Queen's Bench Divisional Court were both dismissed. On appeal to the House of Lords the company submitted that the cause of the escape was not the keeping of the oil but the opening of the tap by a person unknown. The company further submitted that "causing" for the purposes of Section 85(1) of the Water Resources Act 1991 required a positive act and the escape had not been caused by any such positive act by the company. The first issue before the Court was whether there must have been some "positive act" by the company and, if so, whether the company had carried out such an act. The House of Lords held that the maintenance of the diesel tank constituted something which the company had done to "cause" the pollution and, as such, this constituted a positive act by the company. The second issue before the Court was whether the maintenance of the diesel tank did, in fact, "cause" the oil to enter the river. The House of Lords held that in circumstances where a company's actions produced a situation in which polluting matter could escape, but a necessary condition of the actual escape was the act of a third party or a natural event, it must be considered whether that act should be regarded as an ordinary occurrence or something extraordinary. If the act was an ordinary occurrence, it would not sever the causal connection between the company's actions and the pollution. However, if the act was something extraordinary, this would break the causal connection. The Court noted that the distinction between "ordinary" and "extraordinary" is one of fact and degree, and that, regrettably, there was nothing unusual about ordinary vandalism. Applying those principles, the Court at first instance had been entitled to find that the Empress Car Company (Abertillery) Limited had caused the pollution, and therefore the company's appeal was dismissed. The case indicates that the presence of an intervening act in the chain of causation does not necessarily provide a defence to proceedings brought under Section 85(1) of the Water Resources Act 1991.

It also demonstrates a potential distinction between criminal and civil liability over the question of the forseeability of harm caused.