Duties and Their Respective Consequences of Grangewood Paper Company Limited - Case Study Example

Introduction Grangewood Paper Company Limited is ultimately liable to its employees, the community and the company as a whole. Liability may be founded on the basis of both statutory and common law duties of care in criminal law, tort and in contract. The contractual duty arises out of a requirements and duties under the Water Resources Act 1991 and certain obligations to the community also exists under the Health and Safety at Work Act, 1974 and the Environmental Protection Act 1990. Under the law of tort, Grangewood is also liable for the escape of waste from its company’s premises into the neighouring community under principles of nuisance. In each instance both criminal and civil liability can be founded. In addition, Grangewood is accountable to the Environment Agency. This paper will critically evaluate each of these duties and their respective consequences. Waste Management In order to understand how poor waste management constitutes a breach of both statutory and common law duties it is necessary to define waste and the health risks associated with waste. The Department for Environment, Food and Rural Affairs divides waste into commercial, industrial and municipal waste.1 Municipal waste is typically waste disposed of by households, schools and small businesses. Commercial and industrial waste is collected from the business and manufacturing sectors respectively. Otherwise, there are no residual differences between municipal, industrial and commercial waste. To this end waste is “an inevitable by-product of our use of natural resources.”2 Waste is any waste materials generated and collected by local authorities or their agents.3 The Waste Management/The Duty of Care/A Code of Practice, a companion to the Section 34 of the Environmental Protection Act 1990 describes controlled waste as follows: “any substance or object…which the producer or the person in possession of it discards or intends or is required to discard.”4 Council Directive 75/442/EEC also known as the Waste Framework Directive refers to waste as any material that is intended to be discarded or ought to be discarded.5 For all intents and purposes, was is construed within the parameters of the Council Directive.6 In general poor waste management practices can lead to loose debris and pollutants which poses a health risk on site and in the general vicinity.7 These pollutants attract insects and become breeding grounds for germs.8 Solid waste degrades and generally pollutes the area. Similarly liquid wastes becomes stagnant and likewise emits offensive odors and attracts insects such as mosquitoes and other germ and disease carrying insects9. Liquid waste is particularly problematic for Grangewood since its dye is left out so that it is exposed to rain and liquidizes into an unnatural state. Simply put, the Waste Management/The Duty of Care/A Code of Practice, 1990 maintains that: “Waste cannot be simply divided between the safe and the hazardous. There are safe ways of dealing with any waste. Equally, any waste can be hazardous to human health or the environment if it is wrongly managed. Deciding whether any waste poses a problem requires consideration not only of its composition but of what will happen to it. For most waste it is not necessary to know more than what it is in very general terms. But subsequent holders must be provided with a description of the waste that is full enough to enable them to manage the waste properly. Even everyday items may cause problems in handling or treatment.”10 It therefore follows that Grangewood is in breach of its common law and statutory duties to prevent emissions and pollutions for the protection of the community. Duty to the Community/Health and Safety at Work Act The Health and Safety at Work Act imposes upon Grangewood a statutory duty to ensure the “health, safety and welfare” of its workers.11 The Act of 1974 also aims to protect others who might become vulnerable to health and safety risks as a result of “activities of persons at work.”12 The 1974 Act specifically refers to atmospheric emissions, stating that the Act purports to prevent: “…the unlawful acquisition, possession and use of dangerous substances and for controlling emissions into the atmosphere…”13 Section 2(1) of the Health and Safety at Work Act 1974 sets out the general duties of the employer with respect to the health and safety of its employees.14 The specific duties are articulated in Section 2(2) and require of the employer the maintenance of a safe system of work.15 The site management at Grangewood is described as poor and there is general disorganization and neglect with respect to storage of material and disposal of waste. Grangewood is also bound by Section 3 of the Health and Safety at Work Act to ensure that it conducts its business so as to ensure that persons other then employees are not exposed to health and safety risks. Section 3 (1) provides as follows: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”16 Breaches of the Health and Safety at Work Act comes under the portfolio of the Health and Safety Commission and the Health and Safety Executive.17 Inspectors appointed by the Commission and Executive may issue improvement18 and/or prohibition19 notices against Grangewood. Failure to comply with Section 2 and 3 of the Health and Safety at Work Act 1974 is an offence for which Grangewood can be convicted summarily.20 Likewise, should Grangewood fail to comply with an improvement or prohibition notice, they may face criminal proceedings.21 The Water Resources Act 1991 The discharge of the dye and the fixing chemical into the river is particularly problematic for Grangewood. By virtue of Section 85 of the Water Resources Act 1991 it is a criminal offence if: “Any person ‘causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste to enter any controlled waters’.”22 Due diligence is not a defence to Section 85 (1) of the Water Resources Act 1991.23 Moreover, it is not necessary for the pollutants to actually cause harm. It is only necessary to establish that the waste is capable of causing harm to animal or plant life or to those who use the water.24 Grangewood’s discharge of the dye, a solid waste, and the fixing chemical, a liquid waste, into the river can only be excused under a Waste Management license,25 or on the grounds that the discharge was an emergency, necessary to avoid danger to life and that all reasonable steps were taken to prevent the harm and the Environment Agency had been fully informed.26 It is entirely unlikely that the discharge of the dye was an emergency or that reasonable steps had been taken by Grangewood to prevent harm. Moreover, the discharge of the fixing chemicals was purely accidental and committed at the hands of a third party. On the facts, Grangewood appears to be conducting its waste management of the dye and its chemical storage negligently and without proper attention to details. These facts also indicate that Grangewood does not have a license to discharge dye into the river. If the discharge had been authorized by virtue of a license, the Environment Agency would have been monitoring and reviewing the terms of the discharge consent.27 It is reasonable to assume that if the Agency was monitoring Grangewood, the latter’s waste management would not have been so poorly conducted. Moreover, the Agency has the authority to issue enforcement notices to ensure compliance with conditions of discharge consents and licenses.28 The Agency may make a drought order under Section 74 of the 1991 Act to reflect the shortage of water occasioned by the neglectful dye contamination and chemical pollution of the river by Grangewood.29 In such a case, Grangewood may be liable for compensation under Section 79 of the Water Resources Act 1991.30 Compensation can be made to both the owner of the water supply and all interested “in the place of discharge or injuriously affected by the discharge.”31 In all events, the Environment Agency has power of entry to ensure that waste management is remedied32. Likewise the Agency can issue Works Notices33 or to carry out the works necessary to prevent the discharge of the dye into the river or to remove the dye.34Moreover, the Agency is entitled to recover costs for any action taken to remedy the discharge of the dye.35 In addition, the unauthorized discharge of the dye and the fixing chemical can give way to criminal fines and penalties.36 It is arguable that Grangewood is responsible for the emission of the chemicals into the river despite the fact that the chemicals were overturned by vandals. The reasoning for this argument can be found in the case of Environment Agency v Empress Car Co. (Abertillery) Co. Ltd. [1999] 2 AC 22. The defendant company maintained an oil tank at its premises with an outlet that was operated by an unlocked tap. Ultimately, the tap was opened by a person or persons unknown so that the oil escaped into the river.37 This is vastly similar to the facts of Grangewood’s case where the chemicals were stored in an unsatisfactory condition and vandals turned the chemicals over. Although established principles of criminal causation dictates that the voluntary act of the unknown person or persons should have broke the chain of causation, Lord Hoffmann maintained that: “The first point to emphasise is that common sense answers to the questions of causation will differ according to the purpose for which the question is asked.”38 To this end, Lord Hoffman said of environment and pollution offences that: “strict liability is imposed in the interests of protecting controlled waters from pollution.”39 Bearing this purpose in mind, it was necessary that all persons to take responsibility for any pollution that occurred while under their control. Exemption from liability would only be possible in circumstances where the third party’s conduct can been described as “abnormal and extraordinary.”40 In the final analysis, the House of Lords ruled that the defendant company was under a statutory duty to prevent the escape of oil and the pollution that necessarily followed. The statutory duty incurred strict liability preventing the company using the defensce that the pollution was caused by a third party. It therefore followed that the failure to provide a lock on the tank’s outlet amounted to carelessness so that, the defendant company ultimately caused the pollution.41 Environmental Protection Act 1990 The negligent storage of the fabric strands and strand papers and its eventual polluting of the neighbouring properties and the countryside park fall under Section 34 of the Environmental Protection Act 1990. By virtue of Section 34, Grangewood has a statutory duty to prevent the escape and emission of waste from its property. The storage of light material in the open is unacceptable as they can be carried by the wind and this is substantiated by the fact that the strands were carried by the wind. By infringing Section 34 of the Environmental Protection Act 1990, Grangewood exposes itself to criminal liability. Section 34 requires that: “…any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances.”42 Section 34 also goes on to specifically impose a duty to ensure the prevention of escape of waste.43 Enforcement and regulation of controlled waste is under the portfolio of the Environment Agency which was formed by virtue of The Environmental Protection Act 1995.44 The Environment Agency has several options with respect to Grangewood’s breach of its statutory duties. The Environment Agency or the Local Authority may obtain a court order providing leave to enter the property and seize the material that gives rise to the pollution.45 The Agency may also petition the court for an injunction restraining or requiring remedial steps be taken by Grangewood., In general the Agency has the authority to enter property for the purposes of risk assessment and recommendations for improvement of practices which are detrimental to the environment. In the event property owners or occupiers refuse entry the Agency can obtain an entry warrant. Public and Private Nuisance Grangewood may also be liable to individuals who claim interference in the protection of enjoyment or use of their land.46 This right will necessarily arise in respect of the fabric and paper strands that pollute the neighbouring properties. However, the interference is required to be substantial and unreasonable.47 Even so, impacted property owners may acquire a right under both protocol 1 and Article 8 of the European Convention on Human Rights via the Human Rights Act 1998. Article 1 of Protocol 1 of the European Convention on Human Rights guarantees the peaceful enjoyment of one’s possessions.48 Similarly, Article 8 ensures the protection of privacy in ones home and family life.49 Joint Committee on Human Rights in its Twenty-Sixth Report noted that the Convention places a positive burden on contracting states to protect the freedoms and rights contained in the Convention.50 This would obviously mean that the government via local authorities have the right to take action on behalf of the owners and occupiers of property impacted by the escaping fabric strands from Grangewood, since these strands intefere with the individual’s right to the peaceful enjoyment of private property. A public nuisance will apply similarly to interference with the public’s use of property. Public nuisance include conduct that interferes with the public health, safety or convenience and peace.51 Public and private nuisance incurs strict liability.52 Emissions generally may constitute a public nuisance53 and the discharge of the dye into the river can leave Grangewood liable for damages for the wrongful interference of the public’s enjoyment to the river. Likewise, Grangewood is liable in nuisance for the loose strands that blew over into the neighboring parkland, streets and properties. This would obviously constitute interference in the public’s enjoyment and use of the park and the streets. Judicial Review/Public Duties As a company operating and impacting the community and serving the public, Grangewood is accountable to the public. Public accountability is evidenced by the manner in which statutory duties such as those imposed by the Health and Safety at Work Act 1974, the Environmental Protection Act 1990 and the Water Resources Act 1991.54 The practice of permitting poor waste management and storage facilities by Grangewood is clearly a breach of its duties under each of these Acts. The practice is obviously the result of administrative decisions and all decisions that impact the public interest are liable for judicial review.55 The general statutory duties contained in the Water Resources Act 1991 and the Environmental Protection Act 1990 imposes upon Grangewood a general duty to ensure the protection of the environment. Any departure from these duties may result in the criminal and civil liabilities discussed above and may give rise to grounds for judicial review of the company’s administrative decisions. Conclusion The courts are concerned with the public interest protected by the statutory duty. Since such a breach does not give rise to a private law remedy in damages, the public law remedy properly lies in judicial review.56 Ultimately, Grangewood has a duty to ensure that it its waste and work environment does not harm the environment or expose its workers to health and safety risks. A failure to comply with this duty to its employees and the public at large can ultimately be the subject of judicial review at the instigation of the Environment Agency. Judicial review can either compel Grangewood to comply with the Waste Management/The Duty of Care/A Code of Practice, 1990 and/or expose the company to criminal sanctions.57 Bibliography Council Directive 75/442/EEC Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Department for Environment Food and Rural Affairs. ‘Review of Environmental and Health Effects of Waste Management: Municipal Solid Waste and Similar Wastes.’ (May 2004) Queen’s Printer and Controller of HMSO. Environment Agency v Empress Car Co. (Abertillery) Co. Ltd. [1999] 2 AC 22. Environmental Agency v Thorn International UK Ltd. [2008] WLR 219. Environmental Protection Act 1990. Environmental Protection Act 1995. European Convention on Human Rights. Fairgrieve, D, State Liability in Tort: A Comparative Law Study (Oxford University Press, London 2003) Health and Safety at Work Act 1974 House of Lords and House of Commons.(October 9, 2006) “Joint Committee on Human Rights: Twenty-Sixth Report.” Available online at: http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/245/24502.htm Retrieved February 28, 2009 Human Rights Act 1998/ Murphy, J. and Street, H. Street on Torts. (Oxford University Pres, 2007). O’Rourke v Camden LBC [1989] AC 188. Pugh-Smith, J. and Sinclair, G. Neighbours and the Law. (Sweet and Maxwell, 2001). R. V. Dovermoss The Times, Feb. 8, 1995. R v Panel for Takeovers and Mergers Ex P Datafin [1987] 1 QB 815. Rylands v Fletcher [1868] UKHL 1. Saffron, L; Giusiti, L. and Pheby, D. ‘The Human Health Impact of Waste Management Practices: A Review of the Literature and an Evaluation of the Evidence.’ (2003) 14(2) Management of Environmental Quality: An International Journal, 191-213 Waste Management/The Duty of Care/A Code of Practice, 1990. Water Resources Act 1991 Table of Statutes Council Directive 75/442/EEC Environmental Protection Act 1990 Environmental Protection Act 1995 European Convention on Human Rights Health and Safety at Work Act 1974 Human Rights Act 1998 Waste Management/The Duty of Care/A Code of Practice, 1990. Water Resources Act 1991 Table of Cases Environment Agency v Empress Car Co. (Abertillery) Co. Ltd. [1999] 2 AC 22 Environmental Agency v Thorn International UK Ltd. [2008] WLR 219. O’Rourke v Camden LBC [1989] AC 188. R. V. Dovermoss The Times, Feb. 8, 1995. R v Panel for Takeovers and Mergers Ex P Datafin [1987] 1 QB 815. Rylands v Fletcher [1868] UKHL 1. Read More