This was an appeal from a decision of the Magistrates’ Court, acquitting Biffa Waste Services Ltd and Eurotech Environmental Ltd on all informations laid against them for either causing or knowingly permitting polluting matter, namely untreated sewage, to enter controlled waters contrary to section 85(1) and (6) of the Water Resources Act 1991.
The appeal centered on the question of criminal liability of contractors and agents under section 85 of the Act.
In 2003 a sewer in Nottinghamshire belonging to Severn Trent Water Authority Limited (STW) became blocked. As a consequence, sewage discharged out of a manhole and into the adjacent Rainworth water. STW were responsible for the drain. Biffa and Eurotech did not have any responsibility for it at his point in time.
On 3rd April 2003 Biffa was informed of the incident by STW and arrived at the site. Later Eurotech arrived and started trying to bypass the blockage. It was contended that Biffa had taken on the emergency on this morning and had control over the steps to be taken for preventing the pollution. By the next day, the water course was found to be yellow and brown in color, and the manhole was discharging the same quantity of sewage as it had been the previous day.
The Court was of the view crucial issue was whether Biffa was contractually obliged to act independently of STW and to provide services whenever the situation demanded and without specific instruction from STW, or whether its responsibility was merely to provide such services and support as STW required of it during the day. It concluded that STW and not Biffa was managing the emergency incident and was the person responsible for ordering services during 3rd and 4th April 2003. The evidence pointed to STW and not Biffa as being responsible for identifying possible solutions to the problem. There was an obvious difference between the position of a contractor who assumed a responsibility to deal with pollution and one whose responsibility was only to do that which he was instructed to do by his employer.
Eurotech had been placed on Biffa’s approved list of sewer blockage works companies. Biffa however neither exercised any control over Eurotech or the way in which Eurotech performed its work. Eurotech was an independent contractor hired to do a particular job for a fee and its acts and omissions were not those for which Biffa could be vicariously liable. There was no liability under the Act for the acts of an independent contractor. It therefore followed that the appeal failed.