Law Report: Pollution by company unaware of faulty piping: Regina v CPC (UK) Ltd - Court of Appeal (Lord Justice Evans, Mr Justice Popplewell and Mrs Justice Ebsworth), 15 July 1994.

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A company could be guilty of 'causing' a pollutant escaping from its factory to enter a river, contrary to section 85(1) of the Water Resources Act 1991, even though the spillage was accidental and was due to a latent defect in piping installed for the factory's previous owner.

The offence created by the Act did not require proof of fault or knowledge; nor did it require the defendant's act to be the sole cause of the escape. It was enough that on the day the company had operated the factory with defective piping.

The Court of Appeal dismissed an appeal by CPC (UK) Ltd against its

conviction at Plymouth Crown Court (Mr Recorder Miller and a jury) on 13 September 1993, for (i) causing polluting matter to enter controlled waters, contrary to section 85(1) of the 1991 Act, and (ii) causing liquid matter to flow into waters containing fish, contrary to section 4(1) of the Salmon and Freshwater Fisheries Act 1975.

The court also ruled that a water monitoring device installed on the riverbank, into and out of which river water was temporarily diverted through a pipe, did not 'take a sample', in the sense of separating and isolating a part from the whole, so as to attract the conditions, imposed by section 209(1) of the 1991 Act, on the use of its analysis in evidence. Such evidence was therefore correctly ad-

mitted at the trial despite non-fulfilment of the section 209 conditions.

William Edis (Clifford Chance) for CPC; Martin Meeke (Edward Strouts, Exeter) for the National Rivers Authority.

LORD JUSTICE EVANS, giving the judgment of the court, said CPC operated a large dairy products factory on the banks of the river Lyd in Devon. In October 1992 there was an accidental spillage into the river of a cleaning liquid similar to caustic soda, killing a large number of fish.

CPC'c conduct following discovery of the leak was exemplary and this was reflected in the sentence: an absolute discharge, coupled with an order to pay prosecution costs of pounds 20,000. It transpired the liquid had leaked, via a storm drain, from pip-

ing in the factory which had been defectively installed by sub-contractors before CPC bought the factory. The defect was latent so far as CPC was concerned.

The question for the jury was whether CPC had 'caused' the liquid to flow into the river. It was common ground that this required some positive and deliberate act on their part. The activity relied on was their operation of the factory with a defective pipe.

CPC argued that the cause was not anything they had done, but the fact that the previous owners' subcontractors had failed properly to install the pipes; the jury should have been directed to consider whether the sub-contractors rather than CPC caused the pollution.

Their Lordships did not accept that submission, which was based on the false premise that there could only be one cause of such an incident. There was no dispute as to what CPC had done: the question was whether they caused the escape. That was a question of fact and common sense for the jury to decide.

The fact that CPC did not know of the defect and could not be criticised for failing to discover it, meant that the defect was latent rather than patent, so far as they were concerned; but that was not relevant in law because the Act did not require either fault or knowledge to be proved against them. It was equally irrelevant that some other person might also have caused the pollution. The Act did not require proof that a defendant's act was the sole cause.