Class 3 – Actus Reus – Causation
Questions on Environment Agency v Empress Car Co [1999] 2 AC
22
1. Empress Car Company was convicted of "causing poisonous, noxious or polluting
matter or sold waste to enter controlled waters" contrary to section 85(1) of the
Water Resources Act 1991. A large quantity of diesel oil had escaped from
a tank into the river.
Section 85(1) reads as follows:
"A person contravenes this section if he causes or knowingly permits any
poisonous, noxious or polluting matter or any solid waste matter to enter any
controlled waters."
On 20 March 1995 the tap was opened by a person unknown (confirmed to be
stranger/employee) and the entire contents of the tank ran into the drum,
overflowed into the yard and passed down the drain into the river.
Para 8 and 9 are useful to look at:
"8. . . . The appellant had brought the oil onto the site and put it in a tank with
wholly inadequate arrangements for withdrawal--outside the bund. We had regard
to the nature and position of the bund, the inability of the tap to be locked and the
inadequacy of the bund to contain overflow in the circumstances which happened,
whether they were deliberate or negligent or careless.
"9. The appellant should have foreseen that interference with their plant and
equipment was an ever-present possibility, and they failed to take the simple
precaution of putting on a proper lock and a proper bund and this was a significant
cause of the escape even if the major cause was third party interference."
The company's case before the Divisional Court was that if the evidence was
consistent with the tap having been opened by a stranger, it should have been
acquitted. The escape would have been caused by the stranger and not the
company. The Divisional Court disagreed, saying that although it would be true to
say that the escape had been caused by the stranger, it was open to the Crown Court
to find that it had also been caused by the company.
2. Before your Lordships, Mr. Philpott for the company repeated his submission that
the cause of the escape was not the keeping of the oil by the company but the
opening of the tap by the stranger. He also said that "causing" for the purposes of
section 85(1) required some positive act and that the escape could not be said to
have been caused by any such act by the company. All it had done was to create a
state of affairs in which someone else could cause the oil to escape. There are
accordingly two issues in the case. The first is whether there has to have been some
"positive act" by the company and, if so, whether the company did such an act. The
second is whether what it did "caused" the oil to enter the river.
3. “I turn next to the question of third parties and natural forces. In answering
questions of causation for the purposes of holding someone responsible, both the
law and common sense normally attach great significance to deliberate human acts
and extraordinary natural events. A factory owner carelessly leaves a drum
, containing highly inflammable vapour in a place where it could easily be accidentally
ignited. If a workman, thinking it is only an empty drum, throws in a cigarette butt
and causes and explosion, one would have no difficulty in saying that the negligence
of the owner caused the explosion. On the other hand, if the workman, knowing
exactly what the drum contains, lights a match and ignites it, one would have equally
little difficulty in saying that he had caused the explosion and that the carelessness of
the owner had merely provided him with an occasion for what he did. One would
probably say the same if the drum was struck by lightning. In both cases one would
say that although the vapour-filled drum was a necessary condition for the explosion
to happen, it was not caused by the owner's negligence. One might add by way of
further explanation that the presence of an arsonist workman or lightning happening
to strike at that time and place was a coincidence.” (Lord Hoffmann)
FORESEEABILITY HAS NOTHING TO DO WITH CAUSATION.
TEST FOR ACTS OF NATURE.
The two possible convictions:
Questions on Kennedy
R. v. KENNEDY (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
1. The agreed facts are clear and simple. The appellant lived in a hostel in which Marco
Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the
appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody.
According to Cody, Bosque told the appellant that he wanted “a bit to make him sleep” and
the appellant told Bosque to take care that he did not go to sleep permanently. The appellant
prepared a dose of heroin for the deceased and gave him a syringe ready for injection.
The deceased then injected himself and returned the empty syringe to the appellant, who left
the room. Bosque then appeared to stop breathing. An ambulance was called and he was
taken to hospital, where he was pronounced dead. The cause of death was inhalation of
gastric contents while acutely intoxicated by opiates and alcohol.
2. “When is it appropriate to find someone guilty of manslaughter where that
person has been involved in the supply of a class A controlled drug, which is then freely
and voluntarily self-administered by the person to whom it was supplied, and the
administration of the drug then causes his death?”
3. The appellant was tried at the Central Criminal Court on an indictment containing
two counts: an unparticularised count of manslaughter; and a count of supplying a
class A drug (heroin) to another in contravention of section 4(1) of the Misuse of
Drugs Act 1971. The appellant pleaded not guilty to both counts but on 26 November
1997 he was convicted of each. He was sentenced to five years’ imprisonment on the
first count and three years’ concurrent on the second. He was granted leave to appeal
against the conviction of manslaughter but his appeal was dismissed by the Court of
Appeal Criminal Division (Waller LJ, Hidden J and His Honour Judge Rivlin QC) on
31 July 1998: [1999] Crim LR 65. On that appeal the appellant no longer disputed that
he had supplied the heroin to the deceased, and that has not since been in issue.
There is now, as already noted, no doubt but that the appellant committed an unlawful
(and criminal) act by supplying the heroin to the deceased. But the act of supplying,
without more, could not harm the deceased in any physical way, let alone cause his
death. As the Court of Appeal observed in R v Dalby [1982] 1 WLR 425, 429, “the
supply of drugs would itself have caused no harm unless the deceased had
Questions on Environment Agency v Empress Car Co [1999] 2 AC
22
1. Empress Car Company was convicted of "causing poisonous, noxious or polluting
matter or sold waste to enter controlled waters" contrary to section 85(1) of the
Water Resources Act 1991. A large quantity of diesel oil had escaped from
a tank into the river.
Section 85(1) reads as follows:
"A person contravenes this section if he causes or knowingly permits any
poisonous, noxious or polluting matter or any solid waste matter to enter any
controlled waters."
On 20 March 1995 the tap was opened by a person unknown (confirmed to be
stranger/employee) and the entire contents of the tank ran into the drum,
overflowed into the yard and passed down the drain into the river.
Para 8 and 9 are useful to look at:
"8. . . . The appellant had brought the oil onto the site and put it in a tank with
wholly inadequate arrangements for withdrawal--outside the bund. We had regard
to the nature and position of the bund, the inability of the tap to be locked and the
inadequacy of the bund to contain overflow in the circumstances which happened,
whether they were deliberate or negligent or careless.
"9. The appellant should have foreseen that interference with their plant and
equipment was an ever-present possibility, and they failed to take the simple
precaution of putting on a proper lock and a proper bund and this was a significant
cause of the escape even if the major cause was third party interference."
The company's case before the Divisional Court was that if the evidence was
consistent with the tap having been opened by a stranger, it should have been
acquitted. The escape would have been caused by the stranger and not the
company. The Divisional Court disagreed, saying that although it would be true to
say that the escape had been caused by the stranger, it was open to the Crown Court
to find that it had also been caused by the company.
2. Before your Lordships, Mr. Philpott for the company repeated his submission that
the cause of the escape was not the keeping of the oil by the company but the
opening of the tap by the stranger. He also said that "causing" for the purposes of
section 85(1) required some positive act and that the escape could not be said to
have been caused by any such act by the company. All it had done was to create a
state of affairs in which someone else could cause the oil to escape. There are
accordingly two issues in the case. The first is whether there has to have been some
"positive act" by the company and, if so, whether the company did such an act. The
second is whether what it did "caused" the oil to enter the river.
3. “I turn next to the question of third parties and natural forces. In answering
questions of causation for the purposes of holding someone responsible, both the
law and common sense normally attach great significance to deliberate human acts
and extraordinary natural events. A factory owner carelessly leaves a drum
, containing highly inflammable vapour in a place where it could easily be accidentally
ignited. If a workman, thinking it is only an empty drum, throws in a cigarette butt
and causes and explosion, one would have no difficulty in saying that the negligence
of the owner caused the explosion. On the other hand, if the workman, knowing
exactly what the drum contains, lights a match and ignites it, one would have equally
little difficulty in saying that he had caused the explosion and that the carelessness of
the owner had merely provided him with an occasion for what he did. One would
probably say the same if the drum was struck by lightning. In both cases one would
say that although the vapour-filled drum was a necessary condition for the explosion
to happen, it was not caused by the owner's negligence. One might add by way of
further explanation that the presence of an arsonist workman or lightning happening
to strike at that time and place was a coincidence.” (Lord Hoffmann)
FORESEEABILITY HAS NOTHING TO DO WITH CAUSATION.
TEST FOR ACTS OF NATURE.
The two possible convictions:
Questions on Kennedy
R. v. KENNEDY (ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
1. The agreed facts are clear and simple. The appellant lived in a hostel in which Marco
Bosque and Andrew Cody, who shared a room, also lived. On 10 September 1996 the
appellant visited the room which Bosque and Cody shared. Bosque was drinking with Cody.
According to Cody, Bosque told the appellant that he wanted “a bit to make him sleep” and
the appellant told Bosque to take care that he did not go to sleep permanently. The appellant
prepared a dose of heroin for the deceased and gave him a syringe ready for injection.
The deceased then injected himself and returned the empty syringe to the appellant, who left
the room. Bosque then appeared to stop breathing. An ambulance was called and he was
taken to hospital, where he was pronounced dead. The cause of death was inhalation of
gastric contents while acutely intoxicated by opiates and alcohol.
2. “When is it appropriate to find someone guilty of manslaughter where that
person has been involved in the supply of a class A controlled drug, which is then freely
and voluntarily self-administered by the person to whom it was supplied, and the
administration of the drug then causes his death?”
3. The appellant was tried at the Central Criminal Court on an indictment containing
two counts: an unparticularised count of manslaughter; and a count of supplying a
class A drug (heroin) to another in contravention of section 4(1) of the Misuse of
Drugs Act 1971. The appellant pleaded not guilty to both counts but on 26 November
1997 he was convicted of each. He was sentenced to five years’ imprisonment on the
first count and three years’ concurrent on the second. He was granted leave to appeal
against the conviction of manslaughter but his appeal was dismissed by the Court of
Appeal Criminal Division (Waller LJ, Hidden J and His Honour Judge Rivlin QC) on
31 July 1998: [1999] Crim LR 65. On that appeal the appellant no longer disputed that
he had supplied the heroin to the deceased, and that has not since been in issue.
There is now, as already noted, no doubt but that the appellant committed an unlawful
(and criminal) act by supplying the heroin to the deceased. But the act of supplying,
without more, could not harm the deceased in any physical way, let alone cause his
death. As the Court of Appeal observed in R v Dalby [1982] 1 WLR 425, 429, “the
supply of drugs would itself have caused no harm unless the deceased had
