“2.9 Authority and Duties of Operator 2.9.1 Texaco and Petrofina shall exercise all voting and other powers of control available to them in relation to the O perator so as to pro cure (insofar as they are able by the exer cise of such rights and powers) that the Operator shall undertake inter alia the following responsibilities in connection with the operation and maintenance of the Facilities:…”
“(a) the develop ment and im plementation with in three cale ndar months after the date of this Agreem ent of an accounting procedure to regulate actions in relation to all expenditures made and all co mmitments incurred in connection with its [i.e. BOSL’s] duties hereunder ("the Accounting Procedure"); (b) the develop ment and im plementation with in three calendar months after the date of this Agreem ent of procedures and regulations to govern [BOSL’s] operation and maintenance of the Facilities ("the Operating Regulations"); (c) the receipt from the Constructo r of the F acilities an d the subsequent operation and m aintenance thereo f in accord ance with the Operating Regulations and the Accounting Procedure. (d) the provision of all technical and advisory services required for the safe and efficient operation of the Facilities.”
“to indemnify the other as to one half of any claim by or liability to (including any costs and expenses necessarily incurred in respect of s uch claim or liability ) any party not being a party hereto, arising from the Joint Operations.”
“As contemplated by C lause 3.1.5 of the JVA, the term s and conditions set forth in clause 2 of the JVA in relation to the development at Avonmouth will ap ply mutatis mutandis to the joint development and subseque nt operation of the petroleu m storage and distribution facilities … situate at Buncefield…”
“4.2 - Operation of the term inal control system to monitor product receipt into tankage and dispatch to UKOP West London or terminal loading racks - Tankage management - Aviation fuel handling - …. - Liaison with UKOP Ki ngsbury control centre and HOSL terminal personnel… - … - Monitor work carried o ut within th e Terminal that affects the equipment … in accordance with Fina operating and safety procedures - Day to day liaison with the nom inated HOSL management Representative”
“2. IMPLEMENTATION 2.1 The parties hereto shall, during the continuance of the JVA, exercise all voting rights and other powers of control available to them in relation to [ HOSL], so as to p rocure (insofar as they are ab le by the exercis e of such rights an d powers) that [HOSL] shall fully co mply with the provision s of the Accounting Procedure and the Operating Regulations.”
“The Operator [Fina] shall recru it and em ploy such staff as the Board [of HOSL] shall from tim e to tim e consider necessary for the proper conduct of the Term inal Operations and each of the Participants shall (if so requested by th e Board) second personnel to [HOSL] on a full tim e basis and otherwise on terms to be agreed by the Participant.”
“The Contractor shall provide one controller on a 24 hour shift basis whose prime duties will in clude the day to day operation of the autom ated control system s located within the HOSL Control Room…. The services shall…be undertaken in accordance with the operating manuals and procedures provided by [Fina] from time to time…. PURPOSE OF JOB Day to day operation of the contro l systems located within the HOSL Cont rol Room for the control of Fina-line, the HOSL tank farm and loading racks. All duties to conform to procedures and work instructions in compliance with [Fina’s] policy on Health, Safety and the Environment…. MAIN DUTIES 1.0 Fina-Line Control 1.1 Operation of the Fina-Line SCADA system for the remote/automatic operation of pipeline equipm ent in accordance with operating procedures and work instructions. 1.2 Com pilation of run-sheets for charting of product movements through the pipeline. 1.3 Production and distribution of pum ping programmes in accordance with schedule and off-take requirements. 1.4 Liaison with HOSL and LOR personnel for general operational matters and fault rectification….. 2.0 HOSL Terminal Operation 2.1 operation of the Motherwell tank gauging system to control and monitor product receipts into HOSL storage. …. 2.3 Operation of the Motherwell tank gauging system for general tankage management. 2.7 Liaison with Duty Supervisor to maintain adequate tank rotation and any identified movement amendments to rectify stock situations. 2.8 Liaison with Kingsbury Control Centre with respect to receipts from the UKOP system. …. 2.15 Control and operation of [Fina’s] Aviation facilities via the Motherwell control system.”
“In its capacity as m anager of the Buncefield Term inal, Fina shall during the Buncefield Interim Period conduct all ordinary business in relation to th e Buncefield Terminal in a proper and workmanlike m anner and shall conduct operations in accordance with m ethods and practices custo marily used in good and prudent oil storage practice with that degree of diligence and prudence reasonably and ordinarily exercis ed by experienced m anagers engaged in a sim ilar activ ity un der similar circumstances and conditions.”
“Subject as hereinafter provided, all of the property and other assets acquired or held for use in connection with the operation and maintenance of the B uncefield T erminal in acco rdance with this Agreement (as supplemented/amended and/or novated) shall be owned and borne b y [Chevron], Fina and Elf and their perm itted assigns and successors (“the Participants”) in proportion to their undivided participating interests (“Participating Interests”) as follows:- [Chevron] 40 Fina 40 Elf 20” [Chevron] 40 Fina 40 Elf 20”
“3. Subject as expressly provided in this Novation Agreement all other provisions of the Joint Ventu re Agreement shall remain in full force and effect and binding on the parties thereto, insofar as the sam e are in force and effect and binding on those parties immediately prior to the Effective Date.”
“[HOSL] shall recruit and employ such staff as the [HOSL Board] shall from tim e t o tim e consider necessa ry for the proper conduct of the Terminal Operations and each of the Participants shall (if so requested by the [HOSL Board]) second personnel to [HOSL] on a full tim e basis and otherwise on term s to be agreed by the [HOSL Board].”
“1.1 Each of the Participants shall indem nify, hold harm less and defend each other from and against any and all liabilities, claim s, demands, proceedings, dam ages, losses, cos ts, charges and expenses whatsoever arising directly or indirectly out of or as a consequence of the death or illness of or injury to any em ployee, servant o r agent of such Participant or the loss of or dam age to any equipm ent or property…of such Participant or any of its employees, servants or agents, wh ether or n ot resu lting from or contributed to by any negligence or default on the part of [HOSL] or any of the other Participants or any of their employees, servants or agents… 1.2 Save as otherwise expressly provided herein, [HOSL] shall indemnify and hold harmless the Participants from and against any and all claims by third parties in respect of the injury to …any person or the damage to or loss or destruction of any property which may arise out of or in the course of or by reason of the Term inal Operations, save and except if and to the extent that [HOSL] is not indem nified in respect of any such personal inju ry, death or illnes s or dam age to or loss or destruction of property by insuranc e taken out by [HOSL] pursuant to paragraph 2.1.2 of these Operating Regulations, then each of the Participants, to the ex tent of its Pa rticipating Interest, shall indem nify and hold harm less [HOSL] from and against any such claim s by third parties (an d from and against any and all actions, proceedings, liabilities, losses, damages, costs, ch arges and expenses wh atsoever in respect thereof or in relation thereto).”
“11. It was agreed that Fina would operate and engineer HOSL 89 and provide secretarial service.” 89 and provide secretarial service.”
“5. It was agreed that Petrofina would propose the basis for the management fee…largely based on those already agreed f or BOSL.”
“8…No decision had yet been taken as to whether the staff would be seconded by the participants or employed by HOSL.”
“The principal activity of th e company became [trading on ly commencing post balance sheet] th e operation of joint venture petroleum product storage facilities.”
“Manning levels Mr Parsons tabled an am ended version of the paper outlining a proposal on the manning at Buncefield in 1991. The integration of terminal and pipeline manpower was agreed to be the m ost econom ic philosophy with ground fuels throughput being equitably shared between Petrofina and Texaco. Avtur [aviation fuel] would be solely for Petrofina’s account as would be Fina-line costs. The propos ition was o n the basis of a m anagement team comprising a Fina nominated general m anager, two assistant managers and an engineer - the latter predominantly on pipeline work but contributing also to automation needs at the Terminal. The management team would be made up of secondees. There would be ten shift contro llers provided on a contractual basis by BPA the six technicians and two clerical assistants would be directly employed by HOSL but could be drawn from Petrofina and Texaco staff.”
“He said that with the exception of Mr Perrin who would be on secondment from Texaco and the BPA shift controllers Petrofina would wish to em ploy all the other staff. To effect the transfer of suitable personnel to Petrofina, Texaco would therefore first need to make them redundant.”
“6 JOINT VENTURE STRUCTURE Mr Johnson reported that Fina’s Legal Department had raised again the d esirability o f having a joint ventu re ra ther tha n corporate vehicle for operations at Buncefield. It was agreed that there were good reasons for a corporate operation, not least the perceived independence from the t wo shareholders, but that a final decision should be taken following consideration of written propos als from Fina’s Leg al Department. 7 OPERATING BUDGET 1991 The Operating Budget, previously circulated, was accepted with the exception of the m anning structure appointm ents where it was agreed that costs relating to Operations Managers (pipeline and Term inal) should be m erely split 50/50 rather than subdivided further.”
“I enclose herewith the long aw aited Agreement related to the running of the Buncefield Terminal for your comments. As discussed at the last HOSL Board meeting this Agreement is based on the upstream Joint Venture Operating Agreem ent and appoints Fina as Operator of th e two joint venture participants, Fina and Texaco, removing the need for a joint venture company. This preferred structure has also been discussed by David Codd and Malcolm Webb and I understand that no fundamental problem s with this proposed structure were foreseen. Fina’s preference for this joint venture arrangement is based on the cost savings involved and a wish to simplify the structure.”
“As I have explained to you Fina wished to remove the lim ited company, HOSL, from the joint venture arrangem ents at Buncefield as part of its management strategy, introduced by its Chief Executive, to remove all unnecessary companies from its corporate structure.”
“I understand that the m ain line of argum ent against our proposals were that Texaco’s m anagement wished the Buncefield agreement to m atch the comm ercial terms in force at Avonmouth. Our docum ent did that. Comm ercially the two are word for word the sam e - the only difference being the 120. alteration of legal structure which required that, for exam ple, where prev iously the term Board has been used, it was necessary to refer to th e Managem ent Comm ittee. The basic commercial reflection of the Avonm outh agreem ent would have been quite apparent had our proposed documentation been reviewed.”
“At no point has Texaco actually set out what purpose it believes the joint ven ture company, HOSL, served nor why it felt it had to rem ain. However, notwithstanding the above, which I set out to put the record straight, I am resigned to the fact Texaco will not consider our proposals and therefore revert to the former structure. Accordingly please find enclosed for your comm ents a further draft Operating Agreement which provides for the continuance of HOSL and a draft m anagement agreement which follow the format of the BOSL agreements.”
“There still appears to be some confusion on the part of HSE on the accountability of joint venture operations using seconded and contract staff. I explained the set-up at HOSL, i.e., that whilst nobody is actually on the HOSL payroll as such, their responsibilities during secondm ent are directly to HOSL and report through HOSL management to the HOSL board.”
“Fina PLC is the m anagement company in the Joint Venture Agreement and runs HOSL with Fina plc and contract staf f on behalf of Texaco Ltd and Fina plc and is responsible for the stock and financial operations of the terminal. HOSL is also responsible for Fina plc activities associated with operation and receipt of product from the Fina-line and the storage of aviation fuel for Fina plc only.”
“HOSL relationship with Fina and Texaco Under the term s of the Joint Venture Agreem ent, Fina plc has been nominated as the Managing Com pany with responsibility for providing the following support and services to HOSL, - Engineering - Accounting - Personnel - Administration - Purchasing Legal etc - EHS It was not clear during the Audit that the proper channels of communication are used when Texaco and Fina contact HOSL. It is recomm ended that the relatio nship between HOSL and Fina/Texaco is clarified by the HOSL Board of Directors. In the case of Fina, points of contact at a workin g level will b e evident when the organisation chart and job descriptions are published. Texaco should follow the proper channels when dealing with an independent Joint Venture Com pany and ensure that the General Manager is kept fully informed.”
“5. PERSONNEL Mr Parsons reported that BPA had been given notice that their contract for the supply of shift supervisors and controllers Pertinent to other aspects of the pro ceedings, this included the instructi on: “Tanks must not be filled above the predetermined safe working level.”
“11. …Local receipt procedures must at all times be adhered to. A check m ust be carried out to ensure that product is capable o f being received into appropriate tanks and periodic checks made on the volumes being received once product pumping commences…” would expire at end January 1993. Fina were currently interviewing five supervisors who would be responsible for terminal operations and pipelin e activ ities. T he question of continuing to employ the five contracted con trollers was under consideration.”
“Fina plc is the m anagement company in the Joint Venture Agreement. HOSL runs with own and contract staff on behalf of Texaco Ltd and Fina plc and is responsible for the stock and financial operations of the term inal. HOSL is also responsible for Fina plc activities associated with operation and receipt of product from the Fina-line and th e storage of aviation fuel for Fina plc only. HOSL also provides certain services to the Fina laboratory built on HOSL land. Accounting procedures have been set up to allo cate costs associated with HOSL operatio ns and also the Fina-line, aviation fuel and Laboratory costs.”
“ORGANISATION AND RESPONSIBILITIES FINA-LINE is part of the integrated m anagement of HOSL. Fina Plc is the m anaging com pany for HOSL and staff are employed by Fina and seconded to HOSL, except for controllers (and supervisors until 31/01/93) who are subcontracted from BPA. HOSL was audited on 7/9 April 1992 (report HSEQ 92/5 issued July 1992). The Audit m ade a number of recomm endations concerning the organisation, reporting responsibilities, interf aces with oth er companies and operating procedures…... The attached organisation chart for the integ rated management of the HOSL terminal and FINA-LINE is planned to come into effect on 1 st February 1993. Draft job descriptions have been produced for the positions above in the organisation chart.”
“Control Room As a result of the m anpower changes outlined in the General Manager’s report, a proposal was made to rearrange the Control Room to facilitate that Term inal and FINA-LINE controls being in the hands of th e one Con troller. This will enable the Supervisor to be free to attend to m atters specifically requiring his attention out on the Term inal unless two persons are specifically needed in the Control Room at the tim e. The engineers would arrange a detailed estim ate of the costs which would be split on a 50:50 basis with FINA-LINE.”
“Fina PLC is currently the Managem ent Company supporting HOSL’s Management in the following areas: Personnel Engineering Legal/Secretarial Accounting/Purchasing Environment, Health & Safety Total Quality”
“General Manager has overall resp onsibility for all m atters relating to Health and Safety at Work and the Protection of the Environment, and to ensure the satisfactory im plementation of this Policy. He is respo nsible for ensuring that for mal training of personnel is provided. In carrying out these du ties, he will be supported by specialist staff in Fina plc including the Engineering Saf ety Officer and Manager, Environment and Safety Audit.”
“OPERATIONS REPORT The Operations Report January to June 1995 was considered by the Board. It was noted that 3 ex-BPA controllers had joined the Company as duty supervisors and had undergone extensive training on terminal operations and, following a retirem ent, a new technician with electrical qualifications had been appointed. There are now 8 duty supervisors and 7 technicians working for the Company. The senior superv isor has been replaced by an operations co-ordinator working 50% of the time for HOSL.”
“(a) Possible Liquidation Mr Mann said that a m eeting had been held in Nove mber to discuss the proposed joint venture agreem ent. Since that meeting Fina has been reassessing the need to liquidate the Company which will prove to be quite com plicated. If it was decided not to liquidate, a new Joint Venture Agreem ent with amendments would be adopted in any case. It was agreed that Fina should recircul ate the JVA with a note explaining its thinking behind retaining the lim ited company status. Texaco and Elf will then discuss the position with their lawyers.”
“Petrofina has decided to attem pt accreditation under the International Safety Rating Scheme (ISRS) and will commence in the UK with an audit of HOSL in July 1997.”
“The new Joint Venture Agreement is still in the drafting stage. It was questioned whether the original Agreem ent was still valid and pertinent to the Partners cu rrent operations and liabilities. A decision with regard to the n eed for a new Agreement will be taken prior to the next m eeting after legal opinion has been sought by Fina.”
“Whilst there is a legal fram ework in place for HOSL between the parties, this m ay not now strictly reflect the agreed evolution of operating practices at the practical level of the terminal.”
“4. When the tank is app rox 95% full, the ATG activated an alarm which signals to the Supervisor the need to switch to another tank if the batch receipt has not been completed.”
“It was acknowledged that i n strict terms the Joint Venture Agreement did not currently reflect the Partners’ obligations a nd liabilities, but m ay however provide an acce ptable level of risk. The Partners will seek legal advice to determine whether a new agreement is essential.”
“Further to our detailed review of Fina plc’s Term inal Operations with respect to Health & Safety Management, it has been decided that a training programme be com piled for all those staff who work within the Term inal or who have line management responsibilities for Term inal Operations within a head office environment… Fina will advise its Joint Venture Partner of the costs associated with delivering the training programme and seek approval to proceed without delay.”
“1.1.4 The Com panies Senior Managers conduct regular safety tours. The Senior Manager on site conducts a safety tour on a m onthly basis, this is supported by further tours which are carried out by the Managing Director, General Manager and Operations Manager throughout the year at prescribed periods. … The Senior Manager on site attends at least half of all Safety Meetings…. 1.1.6 The objectives are set annually by the Managing Company [Fina] and are sp ecific to the location. These are m easurable, tim e bounded and will often relate to particular elements contained within the Fina Safety Management System. 1.2 LOSS CONTROL CO-ORDINATOR The Loss Control Co-ordinator is responsible for the development, co-ordination, adm inistration and auditing of the Fina plc m anaged Oil Terminal Safety and Health Loss Control System and will advis e the General Manager on Safety and Health Loss Control. The Loss Control Co-o rdinator will ensure th at the safety and health lo ss control system and training are developed, im plementation strateg ies identified and that approp riate system auditing is conducted to measure and evaluate the quality and com pliance of the system. 1.2.1 The Managing Companies Operations and Safety Engineer [ Mr Coalwood] has been designated Loss Control Co-ordinator…. 4.0 TASK ANALYSIS Fina plc recognises the need to identify the m ost critical tas ks carried out by its em ployees and contractors. Critical tasks are th ose relativ ely few tasks which have the highest potential for loss (safety, health, environment, quality, fire etc) if they are done incorrectly. All staff carrying out task analysis and risk as sessment will have rec eived app ropriate training. 4.1.2 It was decid ed that any task which attracted a high rating required imm ediate attention in th e form of a for mal task procedure and work procedures or practic es could cover those attracting medium or low ratings. 4.1.3 Critical tasks, procedures and practices will be reviewed as part of th e accident in vestigation procedure … and in any case every 18 months.”
“As an employer, To talFina GB h as a Duty of Care and is legally obliged to provide a safe working environm ent and to ensure that all ou r activities are carried ou t in a safe m anner. This is achieved by assessing the risks in carrying out our activities, taking action to reduce th e level of risk as far as is reasonably practicable, putting in place system s of work where necessary and training our em ployees. These principles are embodied in what is comm only c alled a Safety Managem ent System (SMS) and the Directo rs have set an objectiv e of ensuring th at an SMS is in pl ace in all operational areas of Total during 2000. A great deal of effort has been put by all of us within “Operations” throughout 1999 to en sure that our revised SMS which we refer to as “S afety & Health Loss Control Manual”, is adopted at HOSL, Sunderland and W OSL. W e have set ourselves a target of having a common SMS for the term inal that we operate by the end of 2000.”
“… we are pleased to confirm details of your appointment with Totalfina…With eff ect f rom 1 st July 2000 you will be employed as Duty Super visor HOSL and be based at H.O.S.L. 196. 15 197. HOSL.”
“Control room staff to be rem inded of the need to check tank ullages at least once every shif t and log this check (possibly using the daily log sheet). Can you send me a copy of whatever instruction you send out?”
“In January 1998, PetroFina adopted the International Small Site Safety Rating System (ex Det Norske Veritas - “DNV” ) as the common approach to the Health and Safety Managem ent at Terminals. Fina plc seconded one of their Operations Engineers to implement the protocol and organise the appropriate training. Work began in February 1998 with the aim of external accreditation for the Health and Safety System s of the Fina plc operated Terminals. In April 1999, TOTALFINA is for med. The new Group reviews its approach to Health and Safety Managem ent System and chooses ISSSRS as the “Group Standard”.”
“1. Storage Tank No 912 -this tank contains gasoline which is the substance presen ting the greates t flamm able hazard. Th is 215. tank is as large as any other storing gasoline and is located in a central position between two similar vessels which also contain motor spirit. Should this tank be on fire it would affect both the adjacent vessels with in the bund thus provid ing m aximum impact in terms of risk. 216. Further to this th e tan k is located neares t to our western boundary adjoining both Buncefield Lane and the Industrial Estate. The bund containing this tank is also the nearest to Cherry Trees Lane. This lane can be quite busy during rush hour periods of day with traffic accessing adjacent work sites. Should a catastrophic tank failure occur then m otor spirit could be released into both Cherry Trees Lane and Buncefield Lane.”
“Operational procedures. There are various types of operating procedure used at the terminal. All identified critical tasks have either a task practise or a task procedure. Further to these there are stand ard operating procedures. Staff consultation, inform ation, instruction and training are all given as part of the adoption of any of these procedures. It is a requirem ent that the staff member signs docum entation to demonstrate when he/she is satisfied and has obtained a good level of understanding of the procedures. …. The task practises and procedures have been based, wherever possible, on recognised published best practise. … Operating procedures can only be generated by the Term inal Manager in conjunction with the Senior Supervisor and Safety Adviser. ….See the attached organogram whi ch details the terminal management and safety structure. Procedures are required to be re-ex amined at any stage sho uld there be changes to the plant, equipment, staff and in any event at in tervals not exceeding eighteen m onths. Critical task practises and procedures are required as part of the SMS, to be discussed with operators and technicians on annual basis to ensure their continuing relevance and validity.”
“Current batch 562A: PU50:915 (connected from 912) NOYS [not on your shift] BPA 912 open for TX7123”
“The expressions used in any individual case must always be considered in regard to the subject m atter under discussion but amongst the m any tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this he will, as a rule, be the person liable for the em ployee's negligence. But it is not enough that the task to be perfor med should be under his control, he must also control the method of performing it. It is true that in most cases no orders as to how a job should be done are given or required: the m an is left to do his own work in his own way. But the ultim ate question is not what specific orders, or whether any specific orders, were given but who is entitled to give the orders as to how the work should be done.”
“Servants cannot be transferred from one service to another without their consent and even where consent m ay be im plied there will always rem ain a question as to the ex tent and effect of the transfer.”
“7. The opinions m ake clear that decisions of this kind depend on the particular facts and that m any factors may bear on the result (see Lord Porter at p 17). In assess ing the facts, certain considerations will or m ay be relevant. These include: (a) the burden of showing that responsib ility does not remain with the general employer, is on the general em ployer and is a heavy one (Viscount Simon at p 10, Lord Macm illan at p 13, Lord Uthwatt at p 21). (b) By whom is the negligent em ployee engaged? Who pays him? Who has power to dismiss him (Lord Simon at p 10)? In the present case the an swer to these questions is the general em ployer, the third defendants. (c) Who has the immediate direction and control of the relevant work (Lord Si mon at p 10, Lord Porter at p 16)? W ho is entitled to tell the em ployee the way in which he is to do the work upon which he is engaged (Lord Porter at p 16, L ord Uthwatt at p 23: “The proper test is whether or not the hirer had authority to control the m anner of executio n of the act in question. Given the existence of th at authority its exercise or non-exercise on the occasion of the doing the act is irrelevant.”) (d) The inquiry should concentrate on the relevant negligent act, and then ask whose responsibility it was to prevent it (L ord Simon at pp 10, 11). In the Mersey Docks case, the stevedores had no responsibility for the way in which the crane driver drove his crane, and it was this which caused the accident (Lord Simon at p 12, Lord Macmillan at p 13, Lord Simonds at p 18). The ultim ate question m ay be, not what specific orders or whether any specific orders were given, but who is entitled to give the orders as to how the work should be done (Lord Porter at p 17). (e) A transfer of services can only be effected with the employee's consent (Lord Porter at p 15, Lord Uthwatt at p 21). (f) Responsibility should lie with the master in whose act some degree of fault, though remote, may be found (Lord Simonds at p 18).”
“78 The rem aining question is to attem pt to defin e the circumstances in which the liability should be dual. It is possible that where the right to control the m ethod of performance of the employee's duties lies solely on the one side or the other, then the responsib ility similarly lies on the sam e side. That reflects the significance of Lord Esher MR's doctrine of entire and absolute control. If so, then it will only be where the right of control is shared that vicarious liability can be dual. I would agree that the balance of authority is in favour of this solution. On this basis, I agree with May LJ' s analysis of the facts in this case as demonstrating a situation of shared control. I would go further and say that it is a situation of shared control where it is just for both em ployers to share a dual vicarious liability. The relevant employee, Darren, was both part of the temporary em ployer's team , unde r the supervision of Mr Horsley, and part of the genera l employer's small hired squad, under the supervision of its Mr Megson.”
“79 However, I am a little sceptical th at the doctrine of dual vicarious liability is to b e wholly equated with the question of control. I can see that, where the assumption is that liability has to fall wholly and solely on the one side or the other, then a test of sole right of control has force to it. Even the Mersey Docks case[1947] AC 1 , however, does not m ake the control test wholly determ inative. Once, however, a doctrine of dual responsibility becomes possible, I am less clear that either the existence of sole right of control or the existence of som ething less than entire and absolute control necessarily either excludes or respectively invokes the doctrine. Even in the establishm ent of a for mal em ployer/employee relationship, the right of control has not retained the critical significance it once did. I would prefer to say that I anticipate that subsequent cases may, in various factual circu mstances, refine the circum stances in which dual vicarious liability may be imposed. I would hazard, however, the view that what one is looking for is a situation where the em ployee in question, at any rate for relevant purposes, is so m uch a part of the work, business or organisation of both e mployers that it is just to m ake both employers answer for his negligence….. 80 One is looking therefore for practical and structural considerations. Is the employee, in context, still recognisable as the employee of his general em ployer and, in addition, to be treated as though he was the employee of the tem porary employer as well? Thus in the Mersey Docks situation, it is tempting to think that liability will not be shared: the em ployee is used, for a limited time, in his general employer's own sphere of operations, operating his general em ployer's crane, exercising his own discretion as a crane driver. Even if the right of control were to some extent shared, as in practice it is almost bound to be, one would hesitate to say that it is a case for dual vicarious liability. One could contrast the situation where the employee is contracted-out labour: he is selected and possibly trained by his general employer, hired out by that em ployer as an integral part of his business, but em ployed at the tem porary employer's site or his custom er's site, using the tem porary employer's equipment, and subject to the tem porary employer's directions. In such a situation, responsibility is likely to be shared. A third situation, where an employee is seconded for a substantial period of tim e to the tem porary em ployer, to perform a r ole em bedded in that employer' s organisation, is likely to result in the sole responsibility of that employer.”
“Notwithstanding the foregoing, for the purpose of all liabilities, claims, actions, demands and proceedings arising out of or in connection with this Agreement (i) the Company agrees to assum e itself the entire obligations, respo nsibilities and liabilities of itself, HOSL and each of the HOSL Participants; and (ii) the Contractor shall look only to the Company for the due perform ance of the obligations, responsibilities and liabilities assumed by the Com pany under this Agreem ent and nothing herein contained shall im pose any liability upon or entitle the Contractor to m ake or bring any action, claim or proceedings on or ag ainst HOSL or any of the HOSL participants.” proceedings on or ag ainst HOSL or any of the HOSL participants.”
“The Company shall provide the Contractor with all m anuals, drawings, procedures and other technical inform ation relating 273. to the HOSL Ter minal and the equipm ent thereon which are necessary in accordance with good oil industry p ractice for the Contractor to perform the services.”
“Having broadly adapted the Managem ent Agreement used for BOSL there is a need to ensure Petrofina, as th e management Company, reserves the right to engage third parties as necessary to enable it to discharge its operating responsibilities to HOSL. Sub-clause 3.3.2 of the MA covers this. Sub-clause 4.1 amplifies it specifically in the context of sharing the HOSL services and costs with Fina- line.”
“Such Accounting Procedure and O perating Regulations are to be interpreted as if references to the Manager are to HOSL and references to the Managem ent Committee are to the HOSL Board.”
“The Manager shall recruit a nd em ploy suc h staff as the Management Comm ittee shall fro m tim e to tim e consider necessary for the proper conduct of the Term inal Operations and each o f the Participants shall (if so req uested by the Management Committee) second personnel to the Manager on a full tim e basis and otherwise on term s to be agreed by the Management Committee.”
“But my point is that you cannot simply responsibly m anage a terminal, particularly on e which is storing g asoline, which is hazardous, by having a site m anager taking all the decisions that are necessary to manage that site. Some of those decisions, in my opinion, if it is to be operated responsibly, and efficiently come to that, sin ce th e inform ation can be shared across different terminals, need to be referred up into a m anagement hierarchy, and I think -- health and safety is a prim e example. We wouldn't want to go and write a health and safety system for one terminal, shall we say BOSL for the sake of argument, when in practice we cou ld write a health and safety system for all of Texaco' s terminals, with some tweaks for each term inal depending on the particular characteristics of that term inal. That wouldn't be an efficient way to do it. Similarly, if we had com plex decisions which the term inal manager didn't feel capable or we didn' t think was capable of taking, then we would want a structure to deal with those decisions, namely, having higher managers, m ore experienced managers in place to handle them. That is what I believ e we set up in the case of HOSL and BOSL, with Fina providing those sorts of management services in the case of HOSL and Texaco providing those sorts of management services in the case of BOSL. It was a nice sort of arrangement for us to enter into because it was 50/50. As far as your earlier question about the board meetings, yes, as far as HOSL was concerned we w ould see that as a chance to catch up on what was going on at HOSL, an operation which we weren't in day-to-day contact with. Sim ilarly, I imagine at least, that Fina would think exactly the s ame of the board meeting at BOSL, they would have a chance to find out what Texaco had been doing in the intervening six months.”
“13. As Ge neral Manager of HOSL I was answerable to the HOSL Board, whereas, as General Manager of the Fina-line, I was answerable to To tal/Fina. In other words , I h ad tw o separate lines of upward reporting: directly to the HOSL Board in respect of the HOSL Term inal and directly to the Total/Fina "Manager Operations", with respect to the Fina-line. 14. In respect of m y role as General Manager of HOSL, t he Organisation Structure chart s et out below accurately reflects the reporting lines in place when I was appoin ted to the ro le. The fact that I repo rted to the HOSL Board did not ch ange during m y tim e as General Manager, but by the tim e of the Incident the reporting lines below m e had changed som ewhat, such that each of the Operations Manager, O perations Coordinator and Adm inistration Co ntroller rep orted to me directly.”
“CHRISTINE MARSHALL: Right. So, the day-to-day thin gs; getting the product th rough, getting the tanker drivers thro ugh, any running repairs to property or anything like that, all of that would go through you at the Total line, through Nigel? ROBERT WHITE: Yes. Providin g it was within the bu dget which we mentioned a moment ago. JOHN WILKINSON: Sort of operational control then with Total, if that's a fair way to summarise it. ROBERT WHITE: Yes.”
“The job holder ensures that TotalF ina-Line and the 7 oil storage term inals in which TotalFina m anages and engineers [this included B uncefield], are operated and maintained in a safe and cost-effective manner.”
“responsible for ensuring that all te rminals operated by TotalFina, provide the service required by the Company and joint venture partners in a safe and efficient manner.”
"P etrofina has decided to attempt accreditation ..."
“CHRISTINE MARSHALL: The safety m anagement system. How were you aware that it was a change? ROBERT WHITE: There was quite a transformation from what we previously had to what we were now introducing. CHRISTINE MARSHALL: What changed? ROBERT WHITE: A huge docum ented system . There was quite a significant amount of retraining at that point, or training. It was brought in with a bit of a fanfare, reco gnised system, international small site safety rating system (inaudible). It is all there, anyway. It was quite a significant move, I think. CHRISTINE MARSHALL: When you say there was a fanfare, are there any particu lar ind ividuals associated with that process? ROBERT WHITE: The sponsor of it was Steve Ollerhead, who was the director of HOSL at the time. CHRISTINE MARSHALL: The way we do things like that in our organisation is the person at the top of it will usually send out a global email or something of that sort saying, "This is the change that we are m aking. This is how we are going to phase it in. This is a training plan" and so on. Is that the sort of process Steve Ollerhead - ROBERT WHITE: Yes, plus we had one or two -- I certainly attended one major meeting with a lot of people. Maybe there were 20 people th ere, seem ed to be key players in this who needed to be brought on board in the introduction of it, in terms of managers. The sessions were lead and driven by Steve. CHRISTINE MARSHALL: Would they all be Total people, as far as you know? ROBERT WHITE: Yes. JOHN WILKINSON: So, the installation of the system was out with your role in HOSL. In other words, the system was introduced to you. There was no consultation period beforehand. It was announced that this was going to happen? ROBERT WHITE: Yes. JOHN WILKINSON: Then there was a rollout, as you have described it in meetings and so on? ROBERT WHITE: Yes. JOHN WILKINSON: Are you aware of what system Texaco were operating at that time and subsequently? ROBERT WHITE: No: I know they had a system but I do not know what it was. I think it was m entioned at one of the board meetings. JOHN WILKINSON: Was there any decision process by the board on this? I should perhaps have asked that question as well, as to whether to adopt the system or that -- ROBERT WHITE: Not to m y knowledge. It was an introduction by Total Fina Elf as part of the way that the management company managed or a part of the m anagement system for one of their terminals.”
“The manual demonstrates that TotalFinaElf intends to m anage health, safety and the environm ent with the sam e degree of expertise and to exactin g standards as per other core business Initially Mr Coalwood and later Mr Metcalfe and Mr Joliffe none of whom gave evidence. 324. activities in order to effectiv ely control risk and prevent h arm to people. 325. This manual describes the various management systems that we will use to achieve those objectives.”
“Q. The giving of that notice invo lved formally recognising to HSE, didn't it, that the operato r was going to have the much more onerous obligations imposed on operators of top tier sites by COMAH? A. Yes, that is correct. Q. You told us on Thursday that you wrote that letter in your capacity as a director of HOSL. A. Yes, that is right. Q. And I suggested to you at the tim e that, since it was on Total notepaper and signed by you as term inal operations manager, you in fact wrote it on behalf of Total, and you didn' t accept that. A. No, that is correct. Q. If you wrote it as a director of HOSL, by what authority did you do that? A. I was a director of HOSL. Q. Did you take the view, Mr L inley, that a director of a company has authority to do anything on its behalf? A. No, I think the H OSL board had given clear direction to Total to sup port the co mpany HOSL in its preparation of any information necessary to comply with the COMAH regulations. Q. Did you think that all directors were entitled to deal with HSE about COMAH or was it just you? A. I would say any director would have had that authority.” “Q. Did you think that it was appropriate for you to give that notice? A. Yes, on behalf of HOSL, I did. Q. If it was being given on behalf of HOSL, why did you think it was appropriate for you as opposed to Mr Tonks to reply ? After all, th is was an answer to a letter which the HSE had actually addressed to Mr Tonks, wasn't it? A. Yes, that is right. Q. They had addressed a letter to Mr Tonks, it was taken out of Mr Tonks' hand by him and you in combination, and you wrote the answer. A. Yes, that is correct. Q. Why was that necessary? A. It probably wasn't necessary but it's what I did. Q. Yes. The only capacity in which you could have written that letter, Mr Linley, was the capacity in which you actually signed it, nam ely, as term inal operations m anager. That is right, isn't it? A. I did sign it as term inal operations manager, but that wasn't my intent when I was writing the letter.”
“CHRISTINE MARSHALL: You have said to us that T otal was the management company for the HOSL site. ROBERT WHITE: That is correct, yes. CHRISTINE MARSHALL: Can you just go into a bit more detail about how that works? ROBERT WHITE: I c annot actually tell you what their rem it was to the joint ven ture because if I did have sight of the management agreement or -- again, whichever version of that it may be, or the initial set up, I do not recall it. So I am not sure of the sort of terms of reference to the joint venture. CHRISTINE MARSHALL: But in practical terms how does it work? ROBERT WHITE: Well, I guess the best place to start is that everyone - all of the people who are em ployed at HOSL are Total employees. So we all have line responsibilities going up into Total. As you have seen from the folder you have there, one of our principal documents in managing safety is the safety management system or loss control m anual, which is a Total managed, edited, scripted, driv en docum ent. Therefore the system is driven by the management company.”
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive eviden ce as to whether the condition of th e fence and the adjacen t terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litig ation. But a defend ant who ad opts it can not complain if the court d raws from t he facts which have been disclosed all reasonable inferences as to what are th e facts which the defendant has chosen to withhold.”
“Who is the operator: HOSL or Total?” “It’s Total”
“Tank overfill is p revented by a roof m ounted Cobham switch which, if actuated, will cause the pipeline manifold to close.”
“Their Lordships think that the duty of a court in approaching the cons ideration of such clau ses m ay be summ arized as follows: - (1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called "th e proferens ") from the consequence of the negligence of his own servants, effect m ust be given to that provision. Any doubts which existed whether this was the law in the Province of Quebec were removed by the decision of the Suprem e Court of Canada in The Glengoil Steamship Company v. Pilkington.16 (2) If there is no express reference to negligence, the court must consider whether the w ords used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If no doubt arises at this point, it must be reso lved agains t th e proferens in accord ance with article 1019 of the Civil Code of Lower Canada: In cases of doubt, the contract is interpreted against him who has stipulated and in "favour of him who has contracted the obligation." (3) If the words used are wide enough for the above purpose, the court must then con sider whether the head of da mage may "be based on som e ground other than that of negligence," to quote again Lord Greene in the Alderslade case. The "other ground" must not be so fanciful or rem ote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be im plied from Lord Greene's words, the ex istence of a possible head of damage other than that of neglig ence is fatal to the proferens even if the words used are prim a facie wide enough to cover negligence on the part of his servants.”
“3. Save as expressly provided in the Novation Agreement itself, the Joint Venture Agreem ent of 1988 is to continue in full force and effect.”
“Each of Texaco and Petrofina and Elf agrees to indemnify the others as to the exten t of their resp ectiveParticipating Interes ts in respect one half of any claim by or liability to (including any costs and expenses necessarily incurred in respect of such claim or liability) any party not being a party hereto, arising from the Joint Operations.” b) This is somewhat unwieldy but, it is s uggested, is n ecessary to refle ct th e impact of Clause 1(b) of the Novation Agreement: “Elf undertakes with each of Texaco and F ina to observe, perform , disc harge and be bound by all liabilities and obligations of Texaco in respect of the Texaco ass igned interest and Fina in resp ect o f the Fina assigned interest in the place o f Texaco and Fina respectively whether actual, contingent or otherwise arising on or after the Effective Date as if Elf had at all times been a party to the Joint Venture Agre ement in relation to such respective interests in place of Texaco and Fina.”
“Following the m ergers of Total, Fina and Elf Groups, it is proposed that Total Downstream UK PLC and Total Milf ord Haven Refi nery Limited (the “Tra nsferors”) transfer to Total UK Lim ited (th e “Transferee”) their sh ares h eld in Hertfordshire Oil Storage Lim ited (“HOSL”) and their respective Participating Interest (as defined in the Joint Venture Agreement of 18 th Ma rch 1988 as am ended by Novation Agreement dated1 January 1994 ) (The “Joint Venture Agreement”) held in relation to Buncefield Term inal and Avonmouth Terminal (hereinafter the "Terminals") and any and all contracts (the “Contracts”) en tered into by the Transferors with you in relation to or in connection with the Term inals (a list of the Contracts is attached hereto in Schedule 1); Would you therefore please accept this letter as formal notification of the transfer and request for consent to the Transferee assuming all the obliga tions of the Transferors and to the Tran sferors bein g released from all th e oblig ations pursuant to the term s of the s aid Joint Venture Agreement and Contracts. If you agree with the above transfer could you please confirm this by sign ing and returning to u s the acco mpanying copy attached hereto.”
“HOSL and BOSL Following your m eeting today with Roger Sm ith there is another issue with regard to HOSL and BOSL which I would like to clear up and that is in respect of the Indemnities given by HOSL to Fina and by BOSL to Texaco. Although in the 1988 Joint Venture Agreement it was agreed that any liability incurred by either Texaco or Fina would be shared on a 50/50 basis between the two, irrespective of negligence or wilful m isconduct; when we ca me to execute the Management Agreements both for Texaco at Avonmouth and for Fina at Buncefield the m anagement com pany wa s indemnified by BOSL or HOSL (as the case m ay be) unless there was either negligence or wilful misconduct. This matter was raised at the las t Board Meeting and it was agreed that the respective lawyers should resolve the issue. My proposal is that we follow the standard North sea principle that where a company is acting as operator on a no gain no loss basis that they be indemnified for their actions or om issions on a full indem nity basis regardless of negligence and that an y liab ility that accrues due to it' s wilful m isconduct exp ressly ex cludes any liability for consequential losses. Clearly some detail needs to be put into the drafting, which I am happy to do, but first could you please confirm your agreement to the principle.”
“I am glad that you agree in principle to the am endments I have suggested and propose that the best way to tackle this would be to amend the present Clause 7.1.2 and insert a new Clause 7.2. Please consider the drafting set out below where I have highlighted the insertion I have m ade in Clause 7.1.2. The proviso which previously stood at the end of that subclause has in addition been deleted. This drafting, of course, relates to the Man agement Agreem ent for HOSL but identical w ording shou ld be incorporated in to the BOSL Agreement, mutatis mutandis. "7.1.2 at all tim es ke ep Fina indem nified and held harmless against all or any actions, proceedings, claims, demands and liab ilities whatsoever arising o ut of the performance of Fina’s dutie s and obligations hereunder regardless of any negligence by Fina which m ay be brought or prosecuted against or incurred by Fina. 7.2 Fina shall not be liable to the C ompany or to Texaco for any loss or da mage arising out of activities under this Agreement unless su ch loss o r dam age results from its Wilful Misconduct and provided that in no case shall Fina be liable to the Com pany or to Texaco for any loss of profit or any other consequential loss.”” "7.1.2 at all tim es ke ep Fina indem nified and held harmless against all or any actions, proceedings, claims, demands and liab ilities whatsoever arising o ut of the performance of Fina’s dutie s and obligations hereunder regardless of any negligence by Fina which m ay be brought or prosecuted against or incurred by Fina. 7.2 Fina shall not be liable to the C ompany or to Texaco for any loss or da mage arising out of activities under this Agreement unless su ch loss o r dam age results from its Wilful Misconduct and provided that in no case shall Fina be liable to the Com pany or to Texaco for any loss of profit or any other consequential loss.”” d) Matters were brought to a close on26 August 1992 , in Miss Mahm ood’s response, where she expressed the belief that the wording would be acceptable and predictably went on to say: “Subject to obtaining my client’s confirm ation that they understand and accep t the revision, I shall revert to you as soon as possible so that we can agree brief a mending agreements as appropriate.”
“The Participant shall, each as to its Participating Interest, keep the Manager indem nified and held harm less against any lo ss, injury or dam age arising out of the perform ance of the Manager’s duties and obligations hereunder except insofar as the said los s, inju ry o r dam age shall arise ou t of the W ilful Misconduct of the Manager provided that the Manager shall not be liable in any event, regardless of Wilful Misconduct, for any consequential loss.”
“Fina explained that this was a common clause in th eir current JVA’s and had been expressly allowed for by Board resolution between Fina and Texaco. Fina would produce a side letter on this point.”
“Thank you for your letters of 26th and 29th November. Dealing firstly with yo ur letter of 26th November, I confirm that I replied to your letter of6th August 1992 , confirm ing my agreement to each of Texaco and Fina being indem nified by BOSL or HOSL (as the case m ay be) unless the relevant party was guilty of wilful misconduct. Attached is a copy of my letter dated25th August 1992 agreeing to your proposed am endment to both Management Agreements.”
“The plaintiffs in the second action (the trustees) were themselves parties to the bringing of the colliery spoil upon their land. In consid eration of paym ent they allowed C ory Brothers to have the use of their lan d for this purpose. There is no authority for applying the doctrine of Fletcher v Rylands to such a case, and, in my opinion, so to apply it would involve an unwarrantable extension of the principle of that decision. A plaintiff who is himself a consenting party to the accum ulation cannot rely sim ply upon the escape of the accum ulated material; he must further establish that the escape was due to want of reasonable care on the part of the person who m ade the deposit. If he does establish this he is entitled to succeed unless the licence was given in such very special term s as to prevent the licensor from complaining of negligence in carrying out the work licensed.”
“The neglig ence of Cory & Co. in this respect m akes them responsible as between them and the trustees for the escape of the colliery spoil, d espite the licence enjoy ed by them, on the authority o f the case of Rylands v. Fletcher. They had permission to bring the spoil on the land of the trustees. B y reason of that perm ission the com pany would not be liable to the trustees if the spoil escaped without any negligence on their part, as they would be liable if the trustees had been strangers with whom they had no contractual relations. No right or permission was expressly or im pliedly given to them to exercise the right or perm ission they had obtained without reasonable care.”
“If the plaintiff has consented to the source of danger and there has been no negligence on the part of the defendant, the defendant is not liable, and the same applies if the water is maintained for the com mon benefit of both the plaintiffs and the defendant.”
“From these judgments it appears that there are two im portant elements for consideration, namely, negligence and consent. In the case of an ordinary water supply in a block of pre mises each tenan t can norm ally be regarded as consenting to the presence of water on the prem ises if the supply is of the usual character. It cannot be said that he consents to it if it is of quite an unusual kind, or is defective or dangerous, unless he knows of that….. It appears to us that they cannot be said to have consented to the set-up or inst allation as it existed at the time the damage was caused. Over and above this, negligence on the part of the defendants which causes or contributes to the damage takes the case out of the exception to the rule in Rylands v. Fletcher. It cannot be disputed that the leaving of the pipe in the condition in which it was constituted negligence, as the judge said..”
“It is worthy of note that so closely connected are the two branches of the law that text-books on the law of nuisance regard cases com ing under the rule in Rylands v. Fletcher as their proper subject, and, as the judgm ent of Blackburn J. in that case itself shows, the law of nuisance and the rule in Rylands v. Fletcher might in m ost cases be invoked Rylands v. Fletcher might in m ost cases be invoked 475. Although issues have arisen as regards the recoverability of economic loss. 476. [1905] 2 K.B. 597 indifferently. One typical illustratio n will suffice. In Charing Cross Electricity Supply Co. v. Hydraulic Power Co. it was the rule in Rylands v. Fletcher that was relied on by the Court of Appeal; but the authority of Midwood Co., Ld. v. Manchester Corporation was invoked and that was a case of nuisance and nothing else.”
“I quite agree that a private nuisance always involves som e degree of repetition or continuance. An isolated act which is over and done with, once and for all, may give rise to an action for negligence or an action under the rule in Rylands v. Fletcher, but not an action for nuisance. A good example is an explosion in a factory which breaks windows for miles around. It gives rise to an action under Rylands v. Fletcher but no other action if there was no negligence: see Read v. J. Lyons & Co. But an isolated act m ay a mount to a public nuisance if it is done under such circumstances that the public right to condemn it should be vindicated.”
“In particular, I do not regard the tw o authorities cited to your Lordships, West v Bristol Tramways Co. [I908] 2 K.B. 14 and Rainham Chemical Works Ltd v. Belvedere Fish Guano Co. Ltd. (1921) 2 A.C. 465, as providing any strong pointer towards a contrary conclusion. It would moreover lead to a more coherent body of common law principles if the rule were to be regarded essentially as an exte nsion of the law of nuisance to cases of isolated escapes from land, even though the rule as established is not limited to escapes which are in fact isolated. I wish to point out, however, that in truth the escape of the P.C.E. from E.C.L.'s land, in the form of trace elements carried in percolating water, h as not b een an iso lated escape, bu t a continuing escape resulting from a state of affairs which has come into existence at the base of the chalk aquifer underneath E.C.L.3 premises. Classically, this would have been regarded as a case of nuisance; and it would seem strange if, by characterising the case as one falling under the rule in Rylands v. Fletcher, the liability should thereby be rendered m ore strict in the circumstances of the present case.”
“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) om its to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoy ment of rights common to all Her Majesty’s subjects.”
“It is dif ficult to ascer tain with any precis ion f rom these citations how widely spread the effect of a nuisance must be for it to qualify as a public nuisance and to become the subject of a criminal prosecution o r of a relator action b y the AttorneyGeneral. It is obvious, notwithstanding Blackstone' s definition, that it is not a prerequisite of a public nuisance that all of Her Majesty's subjects should be affected by it; for otherwise no public nuisance could ever be established at all.”
“iv) It is d enied th at s uch entitlem ent extends to any claim where the dam age did not result from interference with the claimant's own exercise of the pub lic righ t to use the pub lic highways around the Buncefield site. v) It is denied that such entitlement extends to any claim where the damage that is alleged to be particular substantial and direct was not caused by injury to proprietary rights of the claimant in hereditaments in proximity to the public nuisance.”
“The case of Wilkes v. The Hungerford Market Company has no bearing on the present question that m erely declared w hat, under the particular circum stances which existed in that case, would establish a right of action ; but there the question is, whether, the works being lawful, and there being no right of action in that respect, the Plaintiff has a right to compensation by a novel interpretation of certain words in the statute.”
“Upon a review of all the authorities, and upon a consideration of the sections of the s tatutes relating to this subject, I have satisfied myself that the temporary obstruction of the highway, 508. The Court also made reference to Iveson v Moore (1699) LD.Ray 486 where obstruction to a public highway providing access to the plaintiff’s colliery prevented customer access. which prevented the free passage of persons along it, and so incidentally interrupted the reso rt to the Plaintiff’s public house, would not have been the subject of an action at common law, as an individual injury sustained by the Plaintiff in Error, distinguishing his case from that of the rest of the public. That, therefore, he altogether fails to bring himself within the general principle upon which a claim to compensation under the Acts in question has been determ ined to depend; that upon the construction of the clauses on which his claim is rested, the 6 th section of the Railways Clauses Act, and the (58th section of the Lands Clauses Act), are bo th inapplicable, as h is damage arose from the tem porary operations of the company, and not from their permanent works. And upon the 16th section of the Railways Clauses Act, which does apply to his case, his damage was not of such a nature as to entitle him to compensation; the interruption of persons who would have resorted to his house but for the obstruction of the highway, being a consequential injury to th e Plaintiff in Erro r too rem ote to be within the provisions of that section.”
“The Plaintiff relied on the case of Wilkes v. Hungerford Market Company, and on other decisions following upon it. What was ultim ately d ecided in th at cas e was , that where a corporate body had, under lawful authority, obstructed a public thoroughfare, but had continued the obstruction beyond the proper and necessary time, a person living in a house bordering on the obstructed line m ight, in respect of that prolonged obstruction, sustain an action on the ground that, in consequence of the prolonged obstruction, passengers had been unable conveniently to pass by his door, and so that he had lost profit in his business. I confess that I have great difficulty in agreeing with that decision; a difficulty which, as I collect from the language of Sir William Erle, in delivering the judgm ent of the Exchequer Chamber in the case now before us, was felt by him, and the Judges who concurred with him . But it is enough to say that the relief to which the p laintiff was there held to be entitled was not founde d on any s uggestion of injury to the land, or to the house; the sole ground on which there can be any title to relief in this case but on an injury to the occupier which the Court must have held, in the language of Chief Justice Tindal, to have been the direct, necessary, natural, and immediate consequence of the obstruction.”
“The error in the decision (for so I must respectfully deem it to be) which has led to the judgm ent now appealed from , and to others upon which that judgm ent is founded, appears to m e to have arisen entirely from the meaning attributed to those words "injuriously affected," which have been interpreted to mean affected in such a manner as but for the statu tes wo uld constitute an injury at law, and w ould support an action for damages." But there is not, in m y judgment, any warrant for so interpreting or paraphrasing the words, which, in m y opinion, are plainly used in their ordina ry and popular sense; for it is evident th at lands affected in the proper ex ercise of the statutory powers cannot, in a legal sense, be said to be "injuriously affected..” statutory powers cannot, in a legal sense, be said to be "injuriously affected..”
“After the m any i rreconcilable decisions upon the compensation clauses in the Land Clauses Consolidation Act, and the Railways Clauses Consolidation Act, I think we may be said to have arrived at som e settled conclusions upon the subject. It m ay be taken to have been finally decided that in order to found a claim to com pensation under the Acts there must be an injury and da mage to the house or land itself in which the person claim ing compensation has an interest. A mere personal obstruction or inconvenience, or a dam age occasioned to a m an's trade or the goodwill of his busines s, although of such a nature that but for the Act of Parliament it might have been the subject of an action for dam ages, will not entitle the injured party to com pensation under it. Some uncertainty still rem ains as to th e particular c haracter of th e damage and injury to the house or land itself upon which a claim to compensation may be founded.”
“In Ricket’s case it was held, first, that th e plaintiff claim ing compensation had not suffered any peculiar dam age which would have entitled him to succeed in an action for dam ages at common law; and secondly, that in any event he had not proved that his land was injuriously affected. It is difficult to reconcile this case with the decision of the Court of Common Pleas in the case of Beckett v. Midland Ry. Co., which was approved by the House of Lords in Metropolitan Board of Works v. McCarthy , or with the decision of the House of Lords in the last named case; but, be this as it may, Ricket's case (1) is not an authority against the plaintiff's claim in the present case.”
“Greer LJ states express ly and I agree with him that Wilkes v. Hungerford Market ought not to be considered to have been overruled. As I have pointed out above the chief criticism directed against it is as to rem oteness of the dam age not that there was no prima facie cause of action in respect of the injury suffered. The court went on over the ground again and accepted the series of authorities of which Iveson v. Moore and Rose v. Miles are typical examples.”
“I can see no difference in principle between the case where the relevant interference with a business consists of the obstruction of its customers and the case where it consists of obstruction of its employees.”
“This case m ade it apparent that the arbitrary rules stated by, for exam ple, Lord Cranworth in Ricket's case, were not necessary to keep the floodgates shut. The construction of the railways would have caused no loss to post houses or coaching inns if the trains had not run. So after Brand's case the cases on injurious affection caused by the construction of the works returned to m ore logical princip les. Ricket v Metropolitan Railway Co LR 2. HL 175 was explained and distinguished in later cases in your Lo rdships' House until it becam e very difficult to say for what propo sition, if any, it rem ained authority.”
“Any nuisance is public which m aterially affects the reasonable comfort and c onvenience of life of a class of Her Majesty’s subjects.” b) In Rimmington Lord Bingham introduced the topic this way at para. 6:- “It becam e clear over tim e that the re were so me acts and omissions which were socially objectionable but could not found an action in priv ate nuisance because th e injury was suffered by the local community as a whole rather than by individual victim s and becau se m embers of the public suffered injury to their rights as su ch rather than as priv ate owners or occupiers of land. In terference with the use of a public highway or a public navigable river provides the best and most typical exam ple. Conduct of this kind cam e to be treated as crim inal and punishab le as such. In an unpoliced and unregulated society, in which local governm ent was rudimentary or nonexistent, common nuisance, as the offence was known, came to be (in the words of J R Spencer, "Public Nuisance-A Critical Examination" [1989] CLJ 55, 59) "a rag-bag of odds a nd ends which we should nowadays call 'public welfare offences ". But central to th e content of the crime was the suffering of common injury by m embers of the public by interference with rights enjoyed by them as such. I shall, to avoid wearisom e repetition, refer to this feature in this opinion as "the requirem ent of common injury.” feature in this opinion as "the requirem ent of common injury.”
“It seem s to m e that it is at least arguab le that Professo r Newark was wrong to describe a public nuisance as a "tort to the enjoyment of rights in land". The definition of the crime of public nuisance says nothing about enjoyment of land and some public nuisances undoubtedly have nothing to do with the interference with enjoym ent of land. As Lord Bingham said, the ingredients of the crime and the tort are the same. A public nuisance is simply an unlawful act or omission which endangers the life, safety, heal th, property or comfort of the public. As was said in Salmond and Heuston on the Law of Torts (21 st edition 1986): "Public and private nuisances are not in reality two species of the s ame genus at all. There is no generic conception which includes the crime of making a bomb-hoax and the tort of allowing one' s trees to overhang the land of a neighbour".” d) Likewise in Jan de Nul v Royal Belge [2000] 2 Lloyd’s Rep. 700 dredging operations in one area of Southam pton Water caused silting in the vicinity of commercial wharves and oyster bed of the parties. Moore- B ick J summarised the claim in public nuisance as follows at para 96: “Liability in public nuisance, however, raises more difficult questions. Although it does som etimes arise f or consideration in the context of an interferen ce with the plaintiffs use and enjoy ment of land sim ilar to that which would support a claim in private nuisance (see, for exam ple, Attorney-General v. PYA. Quarries Ltd., [l957] Q.B. 169), that is not its essential nature. Perhaps it is m ost commonly encountered in the context of obstruction of the highway or of a navigable waterway interfer ing with the pu blic right of passage, but, as the editors of Clerk & Lindsell point out in par. 18-05, the scope of public nuisance is wide and the acts and omissions to which it applies are all unlaw ful. Private nuisance, on the other hand, is only concerned with interference with the use and enjoyment of land and m ay be committed by doing acts which are not necessarily unlawful in themselves.”
“… if and insofar as physical dam age has been caused to assets of which WLPS/UKOP (as the case may be) is the legal o wner, then that owner is entitled to bring claims in respect thereof (and any recoverable consequential losses) in its own name against those legally responsible for causing such loss and/or dam age. Insofar as such claims are brought in respect of or as a consequence of dam age to assets which WLPS/UKOP (as the case may be) holds on trust, then any dam ages recovered are to be held on trust fo r the beneficiaries, and apportioned in accordance with the beneficiaries’ respective interests. It is not appro priate for a 541. Similar issues may arise in regard to the BP claim but I make no specific findings in relation to it. 542. It appeared to be com mon ground betw een Shell and Total that econom ic loss was not rec overable under Rylands v. Fletcher but was recoverable in public nuisa nce, subject to proof of special dam age and subject to the issues discussed above. As regards private nuisance the position is in m y j udgment the same as for negligence: there must be a n immediate right t o possession of t he land the e njoyment of w hich is i nterfered with. I do not regard Hunter v. Canary Wharf[1997] AC 655 as affording authority for the proposition that beneficial ownership is sufficient in private nuisance. party with a m ere beneficial interest, such as Shell allege s it has, itself to bring a claim against the alleged tortfeasor(s) in respect of loss due to physical damage to assets of which it is a beneficial owner, or loss and dam age consequential thereto.”
“At common law there is no doubt about the position. In case of a wrong done to a chattel the comm on law does not recognize a person whose only right s are a contractual right to have the use or services of th e chattel for purposes of m aking profits or gains without possession of or property in the chattel. Such a person cannot claim for in jury done to his contractual right.”
“My Lords, there is a long line of authority for a principle of law that, in order to enable a p erson to claim in negligence for loss caused to him by reason of loss of or dam age to property, he must have had either the legal ow nership of or a possessory title to th e property co ncerned at the tim e when the loss or damage occurred, and it is not enough for him to have only had contractual rights in relation to such property which have been adversely affected by the loss of or damage to it.”
“My Lords, under this head Mr. Clarke put forward two propositions of law. The first proposition was that a person who has the equitable ownership of goods is entitled to sue in tort for negligence anyone who by want of care causes them to be lost or damaged without joining the legal owner as a party to the action….In m y view, the first proposition cannot be supported. There m ay be cases w here a person who is the equitable owner of certain goods has also a possessory title to them. In such a case h e is entitled, by virtue of his possessory title rather than his eq uitable ownership, to s ue in tort for negligence anyone whose want of care has caused loss of or damage to the goods without joining the legal owner as a party to the action: see f or instance Healey v. Healey [I9151 1 K.B. 938. If, however, the person is the equitable owner of the goods and no more, then he must join the legal owner as a party to the action, either as co-plaintiff if he is willing or as co-defendant if he is not. This has always been the law in the field of equitable ownership of land and I see no reason why it should not also be so in the field of equitable ownership of goods.”
“In m y judgm ent, the law of this country is and always has been that an action for negligence in respect of loss or dam age to goods cannot succeed unless the plaintiff is at the time of tort complained of the owner of the goods or the person entitled to possession of them.”
“I am of opinion that the plaint iff has a title to the imm ediate possession of the chattels claim ed by her, because the trustees of the settlem ent only hold them in trust to allow them to be used by her, and it is impossible for them to be used by her unless she has an imm ediate right to claim possession of them from the trustees. I, therefore, hold that the plain tiff is entitled to maintain this action against her husband without joining the trustees of the settlement as parties.”
“A careful reading of the statem ent of facts preceding the judgment of Shearman J reveals, however, that the wife was not merely the equitab le owner of the chattels. T hey consisted of furniture and household effects ' in, on or about' the husband' s residence used by her. She had been in actual possession of the chattels when they were taken from her and she was entitled to immediate possession of them….. The case is not authority for the proposition that an equitable title alone suffices to support a claim for co nversion. The decision was squarely based on the wife's title to the immediate possession of the goods claimed.”
“Thus it was the plaintiffs ' primary submission that ' a person with an equitable interest in goods can sue for conversion as having an immediate right to posse ssion'; or, to put it another way, Macmillan had ' a good cause of action against Lehm an Brothers for dam age to its reversio nary in terest in the sh are certificates'- the ' reversionary interest' referred to being the equitable interest. The second basis for their case thus added nothing to the first. This argum ent was advanced, relying on Healey v Healey[1915] 1 KB 938 and what Sir David Cairns had said in International Factors Ltd v Rodriguez [l979] 1 A11 ER 17 at 20-21,[1979] QB 351 at 357-358 with the concurrence of Bridge LJ. Healey v Healey[1915] 1 KB 938 is not authority for the cited propos ition, indeed it is authority against it as appears from what Shearm an J (at 940) said. The furniture and household effects in question had been rem oved from the house where she was living by the trustee, her husband. She claimed in detinue for their return: 'Now, the only title which it is necessary for a plaintiff to allege in order to m aintain an action in detinue is a title to the immediate possession of the goods. I am of opinion that the plaintiff has a title to th e immediate possession of the chattels claimed by her because the trus tees of the settlement only hold them in tru st to allow them to b e used by her, and it is impossible for them to be used by her unless she has an immediate right to claim possession of them from the trustees.' The basis of the cause of action was the wrongful deprivation of legal possession, not the fact th at she was the beneficiary of the trust.”
“But it may be said that this is an an swer to the contention that the damage is too remote, but does not deal with the allegation that it does not flow from the tortious act but from the contractual relationship between the ship and its cargo. Sir William McNair put th is contention in the words " Liability or damage arising from a " contract with a third party gives no ground for a claim for " dam ages in an action for negligence against a wrongdoer " unless the liability or dam age arose from physical injury" to the plaintiff' s person or to property owned by or in the " possession of the plaintiff." For this contention there may be much to be said where the person or thing injured was not engaged, as is cargo when being carried in a ship, on a joint adventure. I do not, however, think it a pplies to su ch carriage. It is true th at general average is not affected by insurance law but the outlook upon the mutual obligation entered into by ship and cargo owners resulting in the undertaking of a common adventure m ay be illustrated by the fact that whereas in non-marine cases there is no loss unless the thing insured is injured, in m arine insurance cases the loss of the adventure constitutes a loss for which underwriters are liable though the cargo itself be safe.”
“My Lords, under the law of the sea there is recognized a community between ship and cargo that does not obtain between carrier and custom er on land. This is shown by two well settled principles. First, if a collis ion causing damage to cargo occurs, and the carrying ship and the other vessel are both in fault, cargo could under the old law recover only a moiety of the damage and under statute can now only recover a due proportion determ ined by the degree of blam e. That conception finds no place in land carriag e, where there would be joint liability for the whol e. Secondly, the liability to contribute to general average expenditure is part of the law of the sea. The principle involved in general aver age contribution is peculiar to the law of the sea and extends only to sea risk s. (Cf. Falcke v. Scottish Imperial Insurance Co.) The law of the sea apart, n either at law nor in e quity can contribution be obtained on the ground that loss incurred by one person has delivered another from a common danger (see Johnson v. Wild (2)), or that expenditure incurred by one person has incidentally benefited another (cf. Ruabon Steamship Co., Ld. v. London Assurance (3).) Agency is not im plied from the circumstances, and there is no equity to claim relief. The sufferer both at law and equity must look to gratitude and not to the courts for his recompense. Under the law of the sea, however, ship and cargo are linked together in the fortunes of the voyage and, in a loose sense, there is in some respects a com pulsory partnership between ship and cargo in respect to the venture of sea carriage : Bell's Principles, 9th ed., s. 437 ; Bell's Commentaries, 5th ed., vol. I., p. 534. Section 66 of the Marine Insurance A ct, 1906, aptly refers to the m atter as "the common adventure." A breach of th e duty to take care involving only dam age to the ship may therefore be and in m y opinion is a breach of d uty owed to cargo.”
“On the other hand, if two lorries A and B are m eeting one another on the road, I cannot br ing m yself to doubt that the driver of lorry A owes a duty to both the owner of lorry B a nd to the owner of goods then carried in lorry B. Th ose owners are engaged in a comm on adventure with or by m eans of lorry B, and if lorry A is negligently driven and dam ages lorry B so severely that whilst no dam age is done to the goods in it the goods have to be unloaded for the repair of the lorry and then reloaded or carried forward in som e other way and the consequent expense is by reason of his contract or otherwise the expense of the goods owner, then in my judgment the goods owner has a direct cause of action to recover such expense. No authority to the contrary was cited and I know of none relating to land transport.”
“It being recognised that the nature of the loss held to be recoverable in Anns was pure economic loss, the next point for examination is whether the avoidance of loss of that nature fell within the scope of any duty of care owed to the plaintiffs by the local authority. On the basis of the law as it stood at the time of the decis ion the answer to that question must be in the negative. The right to recover fo r pure econ omic loss: not flowing from physical injury, did not then extend beyond the situation where the loss had been sustained through reliance on negligent mis-statements, as in Hedley Byrne. There is room for the view that an exception is to be found in Morrison Steamship Co. Ltd. v Greystoke Castle (Cargo Owners) (19471 A.C. 265. That case, which was decided by a narrow m ajority, may, however, be regarded as turning on specialties of maritime law concerned in the re lationship of joint adventurers at sea.”
“66 General average loss (2) There is a g eneral average act where an y extraord inary sacrifice or expenditure is voluntarily and reasonably m ade or incurred in tim e of peril for the purpose of preserving the 75 property imperilled in the common adventure.” 75 property imperilled in the common adventure.”
“Their Lordships co nsider that som e lim it or co ntrol mechanism has to be imposed upon the liability of a wrongdoer towards those who have suffered economic dam age in consequence of his negligence. The need for such a lim it has been repeatedly asserted in th e cases, from Cattle's case, L.R. 10 Q.B. 453, to Caltex, 136 C.L.R. 529, and their Lordships are not aware that a view to the contrary has ever been judicially expressed. The policy of im posing such a limit is consis tent with the po licy of lim iting the liab ility of ships and aircraft in 78 595. maritime and aviation law by statute and b y internatio nal agreement… 596. Almost any rule will have some exceptions, and the decision in the Caltex case m ay perhaps b e regard ed as one of the 597. "exceptional cases" referred to by Gibbs J. in the passage already quoted from his jud gment, The excep tional 598. circumstances may be those referred to by Stephen J at pp. 576577 already m entioned. Certainly the decision in Caltex does not appear to have been based upon a rejection of the general rule stated in Cattle's case. For th ese reasons their Lord ships are of the opinion that Yeldham J. erred in holding that the time charterer was entitled to recover damages from the defendant in this case.”