Law Report: Company was liable for river pollution: National Rivers Authority v Alfred McAlpine Homes East Ltd. Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Morland), 26 January 1994

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A company is criminally liable for causing pollution resulting from its operations carried out by its employees acting within the course or scope of their employment.

The Divisional Court allowed the authority's appeal by case stated from the decision of Tunbridge and Malling justices who dismissed an information laid against the defendant company, and remitted the matter for rehearing.

The company was building a residential development in a site through which the Ditton stream runs in a culvert and emerges into a lake which flows into the River Medway. Cement from a water feature being constructed entered the stream polluting it and killing fish. The site agent and site manager employed by the company both accepted responsibility for the pollution.

The company was charged with causing pollution, wet cement, to entered controlled waters, the Ditton stream, contrary to section 85 of the Water Resources Act 1991. The justices accepted its submission of no case to answer, concluding that neither the site agent nor site manager were of sufficiently senior standing within the company to fall into the category of those whose acts were the acts of the company.

Richard Camden Pratt QC and Philip Marshall (Regional National Rivers Authority) for the authority; Marilyn Kennedy-McGregor (Laytons) for the company.

LORD JUSTICE SIMON BROWN said that Alphacell Ltd v Woodward (1972) AC 824, a decision of the House of Lords, was an illustration of a company being criminally liable by being held vicariously liable for the acts of its servants or agents rather than a case where the House of Lords concluded that those representing the directing mind and will of the company had themselves personally caused the polluting matter to escape. An employer was liable for pollution resulting from its own operations carried out under its essential control, save only where some third party acted in such a way as to interrupt the chain of causation.

It seemed nothing to the point that those in the company's head office might well have had no direct part in determining the precise system of construction which allowed the cement to wash into the Ditton stream. It was sufficient that those immediately responsible on site were employees of the com pany and acting apparently within the course and scope of that employment.

Therefore, unless and until the company called evidence displacing the inference from the facts, that the pollution resulted directly from the company's own operation in constructing the water feature, the justices could not properly find no case to answer.

Tesco Supermarkets Ltd v Nattrass (1972) AC 153, the decision which persuaded the justices that a company could only be liable under section 85 if the act which most immediately caused the pollution was that of someone representing the controlling mind and will of the company, was concerned with whether the company was entitled to invoke a defence section.

The question to be asked in all cases where a company was prosecuted under section 85 was whether as a matter of common sense the company by some active operation or chain of operations caused the pollution of the stream. Difficulties might arise where acts of third persons or natural forces were concerned. However no such difficulty arose from the mere fact that most such operations were necessarily undertaken by the company's servants or agents.

MR JUSTICE MORLAND, agreeing, said that to make the section 85 offence an effective weapon in the defence of environmental protection a company must by necessary implication be criminally liable for the acts or omissions of its servants or agents during activities being done for the company.