In the Empress Car Case the House

of Lords stated that if the charge is

‘causing,’ the prosecution must
prove that the pollution was caused
by
something which the defendant
did, rather than merely failed to
prevent. Discuss this statement in
the context of criminal law.
In the Empress Car Company
Case, the company was
convicted of causing poisonous,
noxious, or polluting matter or
solid waste to enter controlled
waters, which in this case, were
the waters of the River Ebbw
Fach. The River Ebbw Fach
runs close to the company’s
premises in Abertillery and falls
under controlled waters as
defined by Section 104 (1)(c)
and
(3) of the Water Resources Act
th of
of 1991. On the 20 March
1995, a large quantity of diesel
oil had escaped from a tank,
that was located on the
company’s premises, into the
river, in
breach of Section 85 (1) of the
Water Resources Act of 1991,
“A person contravenes this
section if he causes or
knowingly permits any
poisonous, noxious or polluting
matter or any
solid waste from entering
controlled waters.” The
prosecution must thus prove
that the
spillage was caused because of
the defendant actions or lawful
omissions.
According to Law Aspect
(2019), an act is an action that
have resulted in harm to a
person, or
damage to property, while an
omission is an action that could
have reduced or prevented the
harm or damage and is not
taken, when the person is under
duty. In criminal law, when
convicting someone for
committing an act that resulted
in harm or damage, the act
alone is
sufficient for conviction,
whereas conviction based on an
omission that caused harm it is
required to identify a breached
duty to act on the part of the
defendant, resulting in harm
(Rosenberg, 2013).
Causation is the relation
between an oct or an omission
of an act and the consequence it
produces and must be proven
before an accused is charged for
that crime (Oxford Reference,
n.d.). There are two aspects of
causation, and these are legal
causation and factual causation,
and both must be satisfied in
order for the defendant to be
found liable. For factual
causation,
proof that the defendant’s
conduct was a necessary factor
for the consequences that
occurred
is a requirement, whereas for
legal causation, proof that the
defendant’s action is adequately
connected to the occurrence is
required (Law Teacher, 2021).
The proof required for legal
causation does not need to be
the only cause of the
consequence,
but it must be a substantial
enough contribution to the
conduct that occurred (Law
Teacher,
2021). The ‘but for’ test is a
common factual causation test
that is used to determine
whether
In the Empress Car Case the House of Lords stated that if the charge is ‘causing,’ the prosecution must
prove that the pollution was caused by something which the defendant did, rather than merely failed to
prevent. Discuss this statement in the context of criminal law. In the Empress Car Company Case, the
company was convicted of causing poisonous,noxious, or polluting matter or solid waste to enter
controlled waters, which in this case, werethe waters of the River Ebbw Fach. The River Ebbw Fach runs
close to the company’spremises in Abertillery and falls under controlled waters as defined by Section 104
(1)(c) and(3) of the Water Resources Act of 1991. On the 20th of March 1995, a large quantity of dieseloil
had escaped from a tank, that was located on the company’s premises, into the river, inbreach of Section
85 (1) of the Water Resources Act of 1991, “A person contravenes thissection if he causes or knowingly
permits any poisonous, noxious or polluting matter or anysolid waste from entering controlled waters.”
The prosecution must thus prove that thespillage was caused because of the defendant actions or lawful
omissions.

According to Law Aspect (2019), an act is an action that have resulted in harm to a person, ordamage to
property, while an omission is an action that could have reduced or prevented theharm or damage and is
not taken, when the person is under duty. In criminal law, whenconvicting someone for committing an
act that resulted in harm or damage, the act alone issufficient for conviction, whereas conviction based
on an omission that caused harm it isrequired to identify a breached duty to act on the part of the
defendant, resulting in harm(Rosenberg, 2013).

Causation is the relation between an oct or an omission of an act and the consequence itproduces and
must be proven before an accused is charged for that crime (Oxford Reference,n.d.). There are two
aspects of causation, and these are legal causation and factual causation,and both must be satisfied in
order for the defendant to be found liable. For factual causation,proof that the defendant’s conduct was
a necessary factor for the consequences that occurredis a requirement, whereas for legal causation,
proof that the defendant’s action is adequatelyconnected to the occurrence is required (Law Teacher,
2021).

The proof required for legal causation does not need to be the only cause of the consequence,but it
must be a substantial enough contribution to the conduct that occurred (Law Teacher,2021).

The ‘but for’ test is a common factual causation test that is used to determine whether the defendant’s
conduct caused the plaintiff’s harm.

The “but for” principle asks the question,“but for the defendant’s action would the results or
consequences have occurred?”The principles discussed can be applied to the case to determine whether
the Empress CarCompany actions caused the pollution that occurred. It is a fact, that the company
maintaineda diesel tank in a yard which was drained into the river. This diesel tank was surrounded by
abund to contain any spillage, however, the company override this protection when
anextension pipe was fixed to the outlet of the tank, connecting it to a drum that stood outsidethe bund.
It appeared that the company found it more convenient to draw oil from the drum,rather than directly
from the tank. It should also be noted that the outlet from the tank wasgoverned by a tap which
contained no lock. From this case, the act that was committed was the storage of a poisonous, noxious,
orpolluting matter or solid waste near controlled waters and the omission is the failure to havethe
necessary forms of protections in place to prevent the poisonous, noxious, or pollutingmatter or solid
waste from entering the controlled waters. Although there is no evidence as towhether it was a stranger
or someone belonging to the company that left the tap open, theEmpress Car Company can be convicted
for this offence under Section 85 (1) of the WaterResources Act of 1991, “ (a) he (the company) held the
polluting matter and contained it insuch a way as it would not escape but for a positive act by himself or
another. (b) he (thecompany) failed to take reasonable precautions to prevent such an escape occurring
as aresult of an action by a third party.” Since the tap was open by an unknown person, it cannot be
determined whether the personknew that the outlet was governed by a tap which contained no lock or
not. The ‘but for’principle can be applied, assuming that the person was unaware that the tap contained
nolock.

But for the Empress Car Company’s failure to have the necessary forms of protection inplace to prevent
the poisonous, noxious, or polluting matter or solid waste from enteringcontrolled waters, a large
quantity of diesel oil would not have escaped from the tank into theriver, in breach of Section 85 (1) of
the Water Resources Act of 1991.

Similarly, in Alphacell Ltd v Woodward [1972] AC 824, the defendant was charged withcausing polluted
matter to enter a river, in breech of Section 2 (1)(a) of the Rivers (Preventionof Pollution) Act 1951,
which had the same standings as Section 85 (1) of the 1991 Act, “ ifhe causes or knowingly permits to
enter a stream any poisonous, noxious or polluting matter.”The term ‘causing’ requires the involvement
of an active operation or chain of operations,

Woodward, 1972). “Causing,” under Section 85 (1),required a ‘positive act’ by the company, and whether
that act ‘caused’ the oil to enter theriver. In the Empress Car Case, the ‘positive act’ was the failure to
replace the protection orensure that the necessary precautions were in place to prevent any spillage
from occurring.

The failure to prevent pollution was accompanied by knowledge of the consequences thatcould occur for
not having protection to prevent the spillage of poisonous, noxious, orpolluting matter or solid waste
from entering controlled waters. If the company did notoverride the protection when an extension pipe
was fixed to the outlet of the tank or if theyused a tap which contained a lock, then there would have
been no ‘positive act.’

The defendant may be guilty of causing some damage to happen, but his contribution alonewas not
sufficient for the damage to occur (Law Teacher, 2018). Contributory Causes arefactors which do not
directly cause the damage or harm but provide conditions for thedamage or harm to occur (Riegelman,
1979).

From my understanding of contributory causes,it is the acts or omissions of others, even a deceased
person, which could have played asignificant role in the damage or harm that was caused. Examining this
case, it can be statedthat the contributory cause was overriding the protection of the bund, when an
extension pipewas fixed to the outlet of the tank, connecting it to a drum that stood outside the bund. It
canbe assumed that if the protection of the bund was not overridden and the tap was left open,then the
spillage of diesel into the River Ebbw Fach may not have occurred. Negligence refers to the failure to
conform to a standard of behaviour or duty that is expectedand is a form of fault, along with intention
and recklessness (Ormerod & Laird, 2018).Contributory Negligence is the actions that contributes to the
damage or harm that wasinflicted as a result of one’s failure to meet the standard of duty that one is
required toobserve (Britannica, 2020). Contributory Negligence is a common law tort rule that
prohibitsplaintiffs from recovering for the negligence of others, if they were also negligent and
itcontributed towards the harm or damage (Cornell Law School, 2022). This is an absolutedefence at
common law, but no such principle can be applied in criminal law. A plaintiff canrecover against a
negligent defendant by proving that the defendant owed a duty, thedefendant breached that
duty and damage, or harm was suffered due to the defendant’s breachof duty (Cornell Law School,
2022). For legal causation to be satisfied there are elements that must be present, the cause must
besubstantial to the extent that it is more than slight or trifling and the defendant must to someextent
be blameworthy in respect of the damage (Oxford Reference, n.d.). There are twocircumstances that can
prevent the defendant from being found to have legally caused thecrime and these are an act of another
person that intervenes between the defendant’s conductand the end result, or an event which occurs
between the defendant’s conduct and the endresult. These circumstances are described as novus
actus interveniens. Novus actusinterveniens translates to an intervening act and is an independent
event which either causedor contributed to the damages that occurred (Lovells, 2017). This act or event
breaks thecausal link between a crime or wrongdoing that is committed by the defendant and
relievesthe defendant from responsibility of these happenings (Oxford Reference, n.d.).After analysing
this case, it can be proven that the defendant’s actions and omissions causedthe spillage. The act that
was committed was the storage of a poisonous, noxious, or pollutingmatter or solid waste near
controlled waters and the omission is the failure to have thenecessary forms of protections in place to
prevent the poisonous, noxious, or polluting matteror solid waste from entering the controlled waters.
The ‘but for’ principle was applied,satisfying the requirement for factual causation and the elements to
satisfy legal causationwere also present. From my point of view there were no novus actus interveniens
that wouldresult in the causal link being broken. In conclusion, it was proven that the Empress
CarCompany caused the pollution that occurred on the 20th of March 1995 at the River EbbwFach in
Abertillery