Sutton and East Surrey Water Plc v Monarch Chemicals Limited & Anor [2026] EWHC 1260 (TCC)

[2026] EWHC 1260 (TCC)Case No HT-2023-000015And also: Claim No. HT-2023-00039IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESKING'S BENCH DIVISIONTECHNOLOGY AND CONSTRUCTION COURTVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 26/05/2026
Before
ADRIAN WILLIAMSON KCSITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Between
SUTTON AND EAST SURREY WATER PLCClaimant(1) MONARCH CHEMICALS LIMITEDDefendant(2) MUZTRANS LTDDefendantSUTTON AND EAST SURREY WATER PLC and (1) MONARCH CHEMICALS LIMITED First Defendant/Part 20 Claimant (2) MUZTRANS LTD Second Defendant/Part 20 Defendant
Leigh-Ann Mulcahy KC (instructed by Keoghs LLP) for First Defendant/Part 20 ClaimantBen Quiney KC (instructed by Clyde & Co LLP) for Second Defendant/Part 20 DefendantHearing Hearing dates: 27 to 30 April and 4 May 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 13:00pm on 26 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................ADRIAN WILLIAMSON KCAdrian Williamson KC :Introduction
[1]On 2 February 2017 an incident occurred (“the Incident”) at the Claimant’s (“SESW”) Elmer Water Treatment Works located at Hawks Hill, Leatherhead, Surrey KT22 9DL (“the Premises”). SESW made a substantial claim for losses which they alleged had been caused thereby. This claim was due for trial commencing on 27 April 2026, but the claim was compromised shortly before trial. The First Defendant (“Monarch”) paid just over £5.6M to SESW. SESW discontinued its claim against Muztrans. The trial continued in order to deal with Monarch’s claim for a contribution from the Second Defendant (“Muztrans”).[2]The parties have, very helpfully, agreed a series of questions, which I address below. Unusually for a TCC case, the factual evidence was quite limited. The issues are principally matters of law. I address those questions below after a brief summary of the facts and the relevant jurisdictional landscape.[3]I heard from the following lay witnesses, who gave oral evidence: i) Chris Humphrey, an HGV driver called by Monarch; ii) Andrew Scott, Monarch’s former operations director; iii) Lara Gunn, a director of Muztrans; iv) Tarkan Mazloum, a director of Muztrans.[4]In addition, John Merryweather, the driver during the Incident was due to be called as a witness by Muztrans. However, he was too ill to give live evidence, and his witness statement was received under cover of a Civil Evidence Act notice. SESW’s witnesses were not called and neither party issued any hearsay notices in respect of their evidence.[5]The witnesses who gave oral evidence appeared to me to be perfectly honest in their accounts, albeit Mr Scott occasionally descended into argument. However, the evidence as a whole was unsatisfactory in two respects. Firstly, as already noted, I did not hear live evidence from Mr Merryweather, although Ms Mulcahy KC (appearing for Monarch) expounded various points which she would have put to Mr Merryweather if he had been available. Secondly, and perhaps more significantly, I did not hear evidence from any SESW witnesses, whose acts and omissions would no doubt have been scrutinised if the trial had proceeded as envisaged. The trial which unfolded was, therefore, very much a case of "Hamlet without the Prince".[6]Two consequences follow from this sparse evidential scene. The first is that I have generally relied upon the contemporaneous documents put before me. This accords with the proper approach to oral/factual evidence outlined by Leggatt, J, as he then was, in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at paragraphs 15-22. Secondly, the assessment of the relative blameworthiness of the various parties is a somewhat rough and ready exercise, particularly when I come to consider the alleged contributory negligence of the (absent) SESW.

Factual outline and jurisdictional landscape

[7]SESW is a water utility company. Monarch is a company which sells chemical products. Muztrans is a haulage company.[8]Until about 2011, Monarch had engaged Dodds Transport Limited (“Dodds”) to provide haulage services. In or about 2011 Dodds went into liquidation. Mr Merryweather had worked as a driver for Dodds and had been trained in the “pump over” process whilst employed at Dodds. From at least 2009 onwards, Mr Merryweather received regular specialist training from Monarch, mainly under the auspices of a Mr John Sutton.[9]Monarch had a detailed written procedure for the “pump over” process, which emphasises the importance of ensuring that the labelling on the customer’s intake point corresponded with the container to be discharged. This procedure governed Mr Merryweather’s performance of the “pump over” tasks both at Dodds and, later, for Muztrans.[10]In late 2011 Monarch and Muztrans entered into negotiations for what became in due course the Contract Hire Agreement. Prior to the formation of that Agreement, Muztrans had made some deliveries for Monarch on informal terms but, as Monarch were aware, they made clear that all goods were carried on the Road Haulage Association Conditions of Carriage (“the RHA Conditions”). The 2011 negotiations were conducted between Ms Gunn of Muztrans and Mr Scott of Monarch.[11]On 26th January 2012, Mr Merryweather entered into an employment contract with Muztrans. This was in conventional form. Although formally employed by Muztrans, he was regularly working for Monarch and based at their premises in Sheerness, Kent.[12]On 3rd October 2012, Monarch and Muztrans entered into the Contract Hire Agreement. By clause 3.1, Muztrans contracted with Monarch to “supply 3 x 26 ton rigid tail lift vehicles (hired from Monarch Chemicals) and drivers trained in pump over deliveries”. Further terms included the following: i) By clause 4.1 [Muztrans] “shall be responsible for providing the drivers and other personnel required for the proper performance by the contractors service in accordance with the terms of this agreement none of whom shall be employees of [Monarch].”; ii) Clause 7 was headed “LIABILITY AND INDEMNITY”. By clause 7.1 “The risk of loss or damage to the products whilst in the custody of the customer during loading and off loading at Monarch chemicals will be the responsibility of the customer; in the event that goods are visibly damaged during loading it will be the responsibility of the driver to defect the consignment notes accordingly. (all goods are carried under RHA conditions of carriage 2009).”[13]On 18th January 2017, SESW ordered from Monarch a delivery of 2 x 1530kg (total 3,660kg) of ferric sulphate solution to SESW at the Premises. The price was approximately £950 plus VAT.[14]On 2nd February 2017 Mr Merryweather picked up a load at Monarch’s depot at Sheerness, including the chemicals for SESW. He arrived at the Premises at about 8am. He dealt there with an employee of SESW, Mr Hoy-Priest, who signed the Monarch delivery note. This confirmed that the “discharge hose was connected to the correct receiving point and discharge may commence”.[15]Mr Merryweather then connected the pipes and began pumping ferric sulphate to the connection point. After the first Pump Over had been emptied, Mr Merryweather connected the next Pump Over and pumped over the contents of the drum. This was the critical mistake, as it contained Spectrum rather than the ferric sulphate that he was supposed to discharge.[16]Mr Merryweather then noticed that the drum he had just pumped over was not ferric sulphate but rather a drum of Spectrum. Mr Merryweather immediately informed Mr Hoy-Priest who told his supervisor and SESW’s own emergency procedures were put in place. The plant was then shut down. However, the chemical reaction which followed released a chlorine gas cloud into a building known as the ‘softening building’ where it collected in the roof.[17]Mr Merryweather was immediately suspended on full pay by Muztrans. A disciplinary hearing was held the following week, at which Mr Merryweather received a final written warning.[18]Unsurprisingly, SESW began proceedings against both Monarch and Muztrans, albeit not until 18th January 2023. Their claim was a substantial one, for approximately £6.2m, plus interest and costs.[19]The case proceeded and was due for trial on 27th April 2026. However, on 17th April 2026, a consent order was entered into in the following terms:
“…AND UPON the Claimant having agreed terms of settlement with the First Defendant and having agreed to discontinue its claim against the Second Defendant; BY CONSENT, IT IS ORDERED THAT 1. In full and final settlement of all claims between the Claimant and the First Defendant arising out of or in connection with this action, the First Defendant shall pay the Claimant £5,637,500 in respect of damages, interest and costs within 21 days of the date of this Order… 4. In full and final settlement of all claims between the Claimant and the Second Defendant arising out of or in connection with this action, the Claimant discontinues its claim against the Second Defendant and there shall be no order as to costs as between the Claimant and the Second Defendant. 5. For the avoidance of doubt: (a) this Order is intended to give effect only to the compromise and discontinuance of the Claimant’s claims as set out at paragraphs 1 to 4 above. (b) all other claims as between the First Defendant and the Second Defendant in the Consolidated Proceedings shall proceed in accordance with the existing case management directions and remain listed for a liability trial commencing on 27 April 2026.”

BY CONSENT, IT IS ORDERED THAT

[20]The trial therefore proceeded solely on the claims as between Monarch and Muztrans, these claims essentially arising under the Civil Liability (Contribution) Act 1978 (“the 1978 Act”), the material parts of which are set out below:
“1 Entitlement to contribution. (1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)… (4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established. (5) A judgment given in any action brought in any part of the United Kingdom by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought… 2 Assessment of contribution. (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question… (3) Where the amount of the damages which have or might have been awarded in respect of the damage in question in any action brought in England and Wales by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to— (a)any limit imposed by or under any enactment or by any agreement made before the damage occurred; (b) any reduction by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945… the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 1 above be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced.”
[21]The 1978 Act is a notoriously difficult piece of legislation. However, the general policy of the Act was helpfully summarised by Lord Bingham in Royal Brompton Hospital NHS Trust v Hammond (No.3) [2002] 1 W.L.R. 1397:
“6.. When any claim for contribution falls to be decided the following questions in my opinion arise: (1) What damage has A suffered? (2) Is B liable to A in respect of that damage? (3) Is C also liable to A in respect of that damage or some of it?...I do not think it matters greatly whether, in phrasing these questions, one speaks (as the 1978 Act does) of “damage” or of “loss” or “harm”, provided it is borne in mind that “damage” does not mean “damages” (as pointed out by Roch LJ in Birse Construction Ltd v Haiste Ltd [1996] 1WLR 675 , at p 682) and that B's right to contribution by C depends on the damage, loss or harm for which B is liable to A corresponding (even if in part only) with the damage, loss or harm for which C is liable to A. This seems to me to accord with the underlying equity of the situation: it is obviously fair that C contributes to B a fair share of what both B and C owe in law to A, but obviously unfair that C should contribute to B any share of what B may owe in law to A but C does not.”
[22]Against that background, I turn to the issues as agreed between Counsel. 1. Is Monarch entitled to contribution from Muztrans pursuant to sections 1 and 6 of the Civil Liability (Contribution) Act 1978? In particular:a. Did Muztrans owe SESW a duty of care in tort? If so: i. what was the nature of that duty? ii. was it breached? iii. if yes, did such breach cause the Claimant to suffer any loss or damage?b. Is Muztrans vicariously liable for any negligence on the part of Mr John Merryweather jointly with Monarch?c. Is Muztrans liable to SESW in respect of ‘the same damage’ as Monarch?[23]Issue (a) can be dealt with shortly. Neither SESW nor Monarch put forward any coherent case that Muztrans itself owed a duty of care to SESW, still less that it was breached. One could, in principle, imagine such a situation: for example, if Muztrans had failed to train the drivers appropriately or had given them inaccurate instructions. But there was no evidence to support such a case here.[24]In truth, this was a case where the real controversy related to issue (b), the attempt to make Muztrans vicariously liable for any negligence on the part of Mr Merryweather.[25]By the end of the trial the following matters were common ground: i) Monarch was vicariously liable for any negligence on the part of Mr Merryweather (for otherwise Monarch could not have been liable to SESW, which is the premise of a 1978 Act claim); ii) Muztrans was, therefore, liable, if at all, upon the principle of dual vicarious liability; iii) It was a question of fact and degree as to whether this principle was applicable to the facts of the present case.[26]The principle of dual vicarious liability was established in the Court of Appeal decision in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] Q.B. 510. There Rix LJ explained the matter as follows:
“55. The concept of vicarious liability does not depend on the employer's fault but on his role. Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to the employer on the practical assumption that, inter alia, because he can spread the risk through pricing and insurance, he is better organised and able to bear that risk than the employee, even if the latter himself of course remains responsible; and at the same time the employer is encouraged to control that risk. For these purposes, issues have naturally arisen as to when the relationship of employer and employee, as distinct from that of employer and independent contractor, exists; or as to the doctrine of the course of employment, which seeks to set the scope and limits of the employer's liability. Over the years, the tests which have been adopted to answer these issues have developed in a way which has gradually given precedence to function over form… 77. In my judgment, if consideration is given to the function and purposes of the doctrine of vicarious liability, then the possibility of dual responsibility provides a coherent solution to the problem of the borrowed employee. Both employers are using the employee for the purposes of their business. Both have a general responsibility to select their personnel with care and to encourage and control the careful execution of their employees' duties, and both fall within the practical policy of the law which looks in general to the employer to organise his affairs in such a way as to make it fair, just and convenient for him to bear the risk of his employees' negligence. I am here using the expression “employee” in the extended sense used in the authorities relating to the borrowed employee. The functional basis of the doctrine of vicarious liability has become increasingly clear over the years. The Civil Liability (Contribution) Act 1978 now provides a clear and fair statutory basis for the assessment of contribution between the two employers. In my judgment, the existence of the possibility of dual responsibility will be fairer and will also enable cases to be settled more easily. 78. The remaining question is to attempt to define the circumstances in which the liability should be dual. It is possible that where the right to control the method of performance of the employee's duties lies solely on the one side or the other, then the responsibility similarly lies on the same 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 employers to share a dual vicarious liability. The relevant employee, Darren, was both part of the temporary employer's team, under the supervision of Mr Horsley, and part of the general employer's small hired squad, under the supervision of its Mr Megson. 79. However, I am a little sceptical that the doctrine of dual vicarious liability is to be 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 make the control test wholly determinative. 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 something less than entire and absolute control necessarily either excludes or respectively invokes the doctrine. Even in the establishment of a formal employer/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 circumstances, refine the circumstances 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 employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence. What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit. 80. One is looking therefore for practical and structural considerations. Is the employee, in context, still recognisable as the employee of his general employer and, in addition, to be treated as though he was the employee of the temporary employer as well? (1)Thus in the Mersey Docks situation, it is tempting to think that liability will not be shared: the employee is used, for a limited time, in his general employer's own sphere of operations, operating his general employer'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. (2) 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 employer as an integral part of his business, but employed at the temporary employer's site or his customer's site, using the temporary employer's equipment, and subject to the temporary employer's directions. In such a situation, responsibility is likely to be shared. (3) A third situation, where an employee is seconded for a substantial period of time to the temporary employer, to perform a role embedded in that employer's organisation, is likely to result in the sole responsibility of that employer. 81. Finally, there is the question of contribution between two employers who are both vicariously, but only vicariously, liable. In principle, the two employers will generally be able to contract between themselves as to the basis of contribution. In practice, any such contract is likely to place responsibility entirely on the one side or the other, often accompanied by further provisions regarding insurance. In such a case, while both employers will each be fully liable to the claimant, only one will be liable inter se, for the effect of their contract will be recognised within contribution proceedings. Since the doctrine of vicarious liability is for the benefit of the claimant, and since the two employers are in general able to contract as to their liability inter se with respect to any responsibility they may incur for the negligence of the employee, it seems to me to be unnecessarily restrictive to insist on the impossibility of a dual vicarious liability, thereby forcing on the claimant the historically problematical issue of where vicarious liability ultimately lies, and also forcing on the two employers the need to fight about an all or nothing responsibility.”
[27]I have inserted numerals into paragraph 80 of the judgment to indicate the three categories identified by Rix LJ. The debate in the present case came down to this: Monarch asserted that Mr Merryweather was a category 2 employee and Muztrans responded that he was in fact to be regarded as a category 3 employee. I should also note that in The Catholic Child Welfare Society v The Institute of the Brothers of the Christian Schools [2013] 2 AC 1 Lord Phillips at paragraph 45 preferred Rix LJ’s analysis to that of May LJ in the same case.[28]I have concluded that this case falls within category (3). Mr Merryweather was performing a role embedded in Monarch’s organisation. It follows that Muztrans is not vicariously liable for any negligence on the part of Mr Merryweather jointly. Thus, Muztrans is not liable to SESW in respect of ‘the same damage’ as Monarch.[29]The following facts point in favour of this conclusion: i) Mr Merryweather was, in the words of Rix LJ, “seconded for a substantial period of time” to Monarch. He had been driving for Monarch via Dodds until that company became insolvent in 2011. He then entered into an employment contract with Muztrans, but for about 5 years before the Incident, he was in effect working for Monarch and permanently based at their premises in Sheerness, Kent. ii) Mr Merryweather was driving a Monarch liveried vehicle. This truck was a specialist truck that was owned by Monarch, which was adapted for the particular task of “pumping over” chemicals to customers, such as SESW. This truck was leased to Muztrans as it did not have such trucks, and then Muztrans hired it out with drivers under the Muztrans Contract. He wore Monarch’s uniform. To all outward appearances, he was working for Monarch, as the witnesses accepted. iii) In this capacity, he was under the direction of Mr Sutton who was, in effect, his line manager within Monarch. Mr Sutton issued Mr Merryweather’s directions every day and supervised him in the performance of his work. Monarch determined when and where consignments were to be delivered. It had full control over Mr Merryweather’s working life in the furtherance of its business. iv) On the day of the Incident Mr Merryweather was delivering Monarch’s chemicals to a Monarch customer for which Monarch was being paid. v) Mr Merryweather carried out the pumping operation in the manner directed by Monarch, using the equipment supplied by Monarch, including the specialised truck and protective suits, and following training provided by Monarch. The proper procedure for the pumping over of the chemicals was developed and implemented by Monarch and was a Monarch document. vi) It follows from (v) above that Monarch carried out, and took responsibility for, Mr Merryweather’s training.[30]Monarch rely upon the following matters in support of their contention that this is a category (2) situation, namely that Muztrans: a) employed Mr Merryweather, paid him and dealt with his tax/NI. b) dealt with his holidays/sickness (arranging cover for him as necessary). c) was responsible for compliance with all legal requirements in respect of its drivers. d) renewed his ADR licence when it was due to expire. e) issued equipment, certain items of uniform and documents to him. f) provided training for him (and other drivers). g) supplied his vehicle and serviced it as well as supplying his fuel. h) arranged motor, employers and public liability insurance. i) performed risk assessments in relation to hazardous chemical chemical/delivery for Monarch vehicles - including in relation to pump overs. j) after the initial allocation of the former Dodds’ drivers to the Monarch – Muztrans Contract, decided who to allocate as cover and full-time drivers, including Mr Merryweather. k) benefited from Mr Merryweather’s work and made a profit from the supply of the drivers to Monarch. l) after the Incident, suspended Mr Merryweather, investigated him, held a disciplinary meeting and made the decision to give him a final written warning. m) took responsibility for identifying steps to prevent recurrence of the Incident. n) had the sole power to terminate Mr Merryweather’s employment. o) allowed Mr Merryweather discretion as to the order in which to carry out his deliveries, unless there was a particular customer requirement such as a delivery made between certain times. p) even when acting on the directions of Monarch, Mr Merryweather reported to Muztrans’ directors per clause 2.2 of his contract of employment and would still have to have regard to the interests of Muztrans as his employer.[31]As to the matters urged by Monarch, I would observe that most of them are exactly what one would expect in a category (3) situation where an employee is seconded for a substantial period of time to the temporary employer, to perform a role embedded in that employer's organisation. That, in my view, is true of factors (a) to (d), (g), (h), (k), (l) (n) and (p).[32]As to the other factors: i) (e) and (f) are true up to a point, but the critical equipment and training was provided by Monarch. ii) (j) and (o) are also correct, but the reality was that control of Mr Merryweather’s activity was in the hands of Mr Sutton. iii) (i) and (m) cannot, in my view, outweigh the factors summarised in paragraph 29above.[33]For these reasons, I conclude that Muztrans is not vicariously liable for any negligence on the part of Mr Merryweather jointly with Monarch. Thus, Muztrans is not liable to SESW in respect of ‘the same damage’ as Monarch. 2. Was any liability on the part of Muztrans to make contribution to Monarch excluded, limited or time barred by reason of the Monarch – Muztrans Contract by reason of Conditions 9, 11, 12 and/or 13 of the RHA Conditions 2009 (or alternatively the equivalent clauses under the RHA Conditions of Carriage 1998)? In particular:a. What is the meaning and effect of Conditions 6, 9, 11, 12 and/or 13 (or alternatively the equivalent clauses under the RHA Conditions of Carriage 1998)?b. Were the RHA Conditions of Carriage 2009, and in particular Conditions 9, 11, 12 and 13, incorporated into the contract between Monarch and Muztrans (or alternatively the equivalent clauses under the RHA Conditions of Carriage 1998), and if so to what extent?c. If the RHA Conditions of Carriage 2009 and in particular Conditions 9, 11, 12 and/or 13 (or alternatively the equivalent clauses under the RHA Conditions of Carriage 1998), were incorporated into the contract, were the terms on which Monarch contracted with Muztrans reasonable within the meaning of the Unfair Contract Terms Act 1977?[34]This is an important issue, since, if I am wrong to conclude that there was here no dual vicarious liability, “the effect of their contract will be recognised within contribution proceedings”, as Rix LJ noted in Viasystems. He was there referring to the contract between the two (in principle) vicariously liable parties.[35]Before dealing with the sub-issues, the following general points should be noted.[36]Firstly, subject to the effect of the Unfair Contract Terms Act 1977 (“UCTA”) and the “onerous clause” doctrine, discussed below, it is open to commercial parties to allocate risks and liabilities as between themselves as they see fit.[37]Secondly, it is apparent from the evidence that the RHA Conditions (and their predecessor provisions) are very well known in the haulage and associated industries. Mr Scott frankly accepted this in evidence.[38]Thirdly, road haulage is obviously a vital part of the UK economy, moving goods across the country. It is also obvious that such an industry would seek to limit its potential liabilities in some way. As was discussed at the trial, a haulier might well not wish to accept unlimited liability for loss or damage to a container of valuable watches or priceless paintings.[39]Fourthly, the RHA is a well-known and long established institution. According to its website: “The Road Haulage Association (RHA) is the UK’s largest dedicated trade association representing HGV, coach and van operators. We provide a strong, authoritative voice for our members, working with government, policymakers and local authorities across the UK on the issues that matter most to the road transport sector…Our 8,500 members benefit from access to expert technical and professional services, helping them comply with industry regulations and run their businesses efficiently. We also deliver a wide range of accredited training programmes to support workforce development and operational excellence. While the majority of our members are small and medium-sized enterprises, we also represent larger operators across the sector. Proudly supporting hauliers since 1945”.[40]Fifthly, the RHA Conditions contained the following warning in capital letters at the top of the standard form:
“PLEASE NOTE THAT THE CUSTOMER WILL NOT IN ALL CIRCUMSTANCES BE ENTITLED TO COMPENSATION, OR TO FULL COMPENSATION, FOR ANY LOSS AND MAY BE SUBJECT TO CERTAIN OBLIGATIONS AND INDEMNITIES. THE CUSTOMER SHOULD THEREFORE SEEK PROFESSIONAL ADVICE AS TO APPROPRIATE INSURANCE COVER TO BE MAINTAINED WHILE CONSIGNMENTS ARE IN TRANSIT.”
[41]Against that background, I deal first with the issue of the meaning and effect of the relevant clauses. The key question, it seems to me, is where the RHA Conditions place the risk that damage to third party property may occur during the process of unloading (essentially the situation which occurred here).[42]It seems to me that this risk is placed squarely upon the Customer rather than the Carrier.[43]First of all, condition 9(3) states that:
“(3) The Carrier shall not in any circumstances be liable for loss or damage arising after transit is deemed to have ended within the meaning of Condition 6(2) hereof, whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.”
[44]Condition 6(2) provides that “Transit shall…end when the Consignment is tendered”. According to the OED, the verb “tender” means “to offer or present formally for acceptance.” That seems to me to fit with the present wording: the Consignment is tendered when the Carrier offers it to the recipient for acceptance. That is a distinct step, prior to “unloading”, which is dealt with separately at condition 4. Thus, once the Consignment is offered for acceptance by the Carrier, the Carrier’s liability is at an end.[45]Secondly, condition 11 sets out a limitation of liability regime as follows, with emphasis added:
“11. Limitation of Liability (1) Except as otherwise provided in these Conditions, the liability of the Carrier in respect of claims for physical loss, mis-delivery of or damage to goods comprising the Consignment, howsoever arising, shall in all circumstances be limited to the lesser of (a) the value of the goods actually lost, mis-delivered or damaged; or (b) the cost of repairing any damage or of reconditioning the goods; or (c) a sum calculated at the rate of £1,300 Sterling per tonne on the gross weight of the goods actually lost, mis-delivered or damaged; … (2) The liability of the Carrier in respect of claims for any other loss whatsoever (including indirect or consequential loss or damage and loss of market), and howsoever arising in connection with the Consignment, shall not exceed the amount of the carriage charges in respect of the Consignment or the amount of the claimant’s proved loss, whichever is the lesser, unless:…”
[46]The effect of this wording is that there is a limit placed upon the Carrier’s liability for damage etc. to the goods. Otherwise, any other loss (which would include third party property damage) is limited to the amount of the carriage charges.[47]Thirdly, condition 12 makes provision for an indemnity from the Customer, again with added emphasis:
“12. Indemnity to the Carrier The Customer shall indemnify the Carrier against: (1) … (2) all claims and demands whatsoever (including for the avoidance of doubt claims alleging negligence), by whomsoever made and howsoever arising (including but not limited to claims caused by or arising out of the carriage of Dangerous Goods and claims made upon the Carrier by H.M. Revenue and Customs in respect of dutiable goods consigned in bond) in excess of the liability of the Carrier under these Conditions in respect of any loss or damage whatsoever to, or in connection with, the Consignment whether or not caused or contributed to directly or indirectly by any act, omission, neglect, default or other wrongdoing on the part of the Carrier, its servants, agents or sub-contractors.”

The Customer shall indemnify the Carrier against:

[48]This means that the Customer must indemnify the Carrier against claims etc. made by the recipient of goods, so far as these exceed the amount of the carriage charges. This amount will usually be, and is here, a fairly small sum.[49]Finally, condition 13(2) states that:
“13. Time Limits for Claims … (2) The Carrier shall in any event be discharged from all liability whatsoever and howsoever arising in respect of the Consignment unless suit is brought and notice in writing thereof given to the Carrier within one year of the date when transit commenced.”
[50]It is common ground that the SESW “suit” was not brought within this time limit.[51]Ms Mulcahy KC seeks to escape what appears to be the plain wording of these clauses on two bases.[52]The first is that the exclusions and limitations are said to be “in connection with the Consignment” or “in respect of the Consignment”. The Consignment is defined in the RHA Conditions as “goods”. Thus, she submits, the exclusions and limitations do not bite upon third party property damage, which is what is in play here.[53]Secondly, she relies upon a decision of HHJ Davies, sitting as a High Court Judge, who considered some of these clauses in DRL Ltd. v Wincanton Group Ltd. [2010] EHWC 2896.[54]As to the first point, I agree with the submission of Mr Quiney KC, Counsel for Muztrans, that the wording is very wide indeed. He referred me to the decision of the Court of Appeal in Campbell v Conoco (UK) Ltd [2002] EWCA Civ 704, in which Rix LJ observed that:
“19. I agree that the words of the indemnity, and in particular the connecting links contained in the relevant part of the clause, cover the facts of this case. The words throughout the clause are very wide and the connecting links expressed are themselves of increasing width, ending with the words “in connection with” which are widely regarded as being as wide a connecting link as one can commonly come across. In themselves they do not express the need for a causal connection, although of course they do express a need for a connection of some kind. That is the essence of the words “in connection with”.”
[55]It follows that the Carrier is not liable for, or has severely limited its liability for, any loss connected in any way with the goods, save where liability is accepted in the RHA Conditions. This contrast between the acceptance of liability “for physical loss, mis-delivery of or damage to goods comprising the Consignment” and severe limitation of “liability…in respect of claims for any other loss whatsoever howsoever arising” is particularly starkly set out in conditions 11(1) and 11(2).[56]As to DRL, Judge Davies had to deal with a number of issues of liability in claims and counterclaims arising out of contracts for the provision of logistical services by the defendant company to the claimant company. The relevant claim, number 14 of 18, was “a claim for £36,376 which, according to DRL, is the amount of compensation paid by it to customers in respect of damage to their property caused by Wincanton's delivery men after January 2008 when DRL complains that Wincanton unilaterally reneged on a prior arrangement where it dealt with all such claims directly without involving DRL”: see Judgment para 54(14).[57]As to this,

Judge Davies held as follows:

“147. In his further submissions Mr Chaisty takes the further point in relation to claim 14 that §11(2) RHA does not on its true construction apply to a ‘Biggin v Permanite’ claim for damages by DRL, which I hold in Issue 22 is in principle maintainable. He argues that a claim arising from damage to the dwelling of the consignee is not ‘any other loss howsoever … and howsoever arising in connection with the Consignment’, where the Consignment is defined as the goods the subject of the carriage, because damage caused by the negligence of Wincanton's employee during unloading is outwith the scope of that wording. He makes the point that limiting the loss to the carriage charge (or, optionally, to the amount of the customer's ‘special interest in delivery’) is not consistent with construing the limitation as encompassing such claims. In response Mr De Verneuil Smith submits that §11(2) employs broad words and that loss due to damage to the dwelling of a customer caused on delivery of the consignment falls within those broad words and is indeed loss arising in connection with the consignment. On balance I prefer Mr Chaisty's submissions. The structure of §9 and 11 RHA appear to me to be directed at loss which is connected to the goods the subject of the carriage. Damage to other property caused by the negligence of Wincanton's employees whilst delivering the goods the subject of the carriage is not loss arising in connection with the consignment. Accordingly, I am satisfied that there is no applicable limitation of liability in respect of claim 14.”
[58]Although, as a matter of judicial comity, I should give due weight to these observations, I would respectfully differ therefrom. In particular, Judge Davies does not appear to have been referred to Campbell v Conoco when reaching his conclusion that “damage to other property caused by the negligence of Wincanton's employees whilst delivering the goods the subject of the carriage is not loss arising in connection with the consignment.”[59]In my view, the RHA Conditions provide a comprehensive code dealing with the liabilities that might arise when goods are loaded, transported and delivered. In particular, damage to other property caused by the negligence of the haulier whilst unloading the goods the subject of the carriage: i) Is excluded by condition 9(3); and/or ii) Is severely limited by conditions 11(2) and 12; and/or iii) Must be the subject of suit within one year of the date the transit commenced by virtue of condition 13(2). As held by Judge Davies in DRL at para 131, upheld on this point by the Court of Appeal.[60]As to incorporation, issue 2(b), Ms Mulcahy KC makes two main points.[61]The first is that the effect of clause 7 of the Contract Hire Agreement is only to incorporate the RHA Conditions insofar as they deal with the specific situation envisaged at clause 7, namely during loading and off loading at Monarch. She emphasises that the RHA Conditions may not have been provided to Monarch by Muztrans. I do not agree with this submission: it seems to me that the words “(all goods are carried under RHA conditions of carriage 2009)” are clear and of general effect. They are not limited to the clause 7 situation.[62]The second argument relied on by Monarch is to suggest that the RHA Conditions, or some of them, constitute “onerous clauses”, which needed to be brought to the specific attention of Monarch in order to be incorporated.[63]This principle was very recently considered by the Court of Appeal in MS Amlin Marine NV v King Trader Ltd [2026] 2 W.L.R. 163, 183, where Sir Geoffrey Vos MR expounded the law as follows:
“Discussion of the red hand ground 83. The six authorities do indeed establish the existence of a red hand or onerous clause doctrine. I think the name “red hand doctrine” adopted by the parties is unfortunate and should not be perpetuated. It derives from Spurling and Thornton , which were two cases in which Lord Denning adumbrated a principle that never really found its way into the common law—at least in the way he expressed it. The principle is better described as the onerous clause doctrine. 84. The onerous clause doctrine can be applied to both consumer and commercial contracts, though it is to be noted that Interfoto and Blu-Sky are actually the only recent examples we were shown of it having been applied by the court in commercial situations. The other authorities emphasise the high threshold needed to establish that a clause is onerous or unusual, and the fact that the doctrine is unlikely to have any application in commercial contracts where the parties are of broadly equal bargaining power, and where the challenged clauses in question are common form or usual terms regularly encountered in the business. 85. It is, perhaps, worth restating what the onerous clause doctrine actually amounts to, since Dillon and Bingham LJJ disagreed as to its precise terms. In my judgment, the cases establish, despite Bingham LJ's persuasive conclusion that the effect of the doctrine is to relieve the party from liability under the onerous condition, that where the doctrine applies, the onerous clause in question is not to be regarded as incorporated into the contract, or, perhaps more accurately, as having effect. 86. The onerous clause doctrine provides, therefore, that where a particularly onerous or unusual term of a contract (an onerous clause) is contained in one party's standard terms, and where the other contracting party does not actually know of that term, it will not bind the other contracting party unless the party seeking to rely upon it shows that the clause in question (whether individually or as part of the standard terms) was fairly and reasonably brought to the other contracting party's attention. 87. It is right to point out that some of the authorities have suggested that a sliding scale applies so that the more onerous a clause, the more notice is required to be given to make it effective (see, for example, Gross LJ at para 101 in Goodlife). For my part, I would not formalise that as part of the onerous clause doctrine. It is sufficient to say that both the question of how onerous or unusual the clause needs to be and the question of what amounts to fair and reasonable notice are questions of fact and degree that the court needs to decide taking into account all the circumstances of the case in question. It is always unwise to lay down strict conditions for the application of simple principles, since one cannot predict the facts and circumstances of future cases. 88. I would emphasise once again the high threshold that is required to show that a clause is onerous or unusual in the first place, particularly in a commercial context.”
[64]I have emphasised in this citation that a “high threshold” is required to bring the doctrine into effect. This threshold is not met in the current case. The RHA Conditions are not, in my view, onerous or unusual. They are well known and of long standing. They provide a comprehensive code as explained above. In some ways, they could be said to favour the carrier, but equally there are arguments to the effect that such protection is necessary to ensure the smooth passage of goods around the UK. But, of course, in a commercial context, it is open to a party such as Monarch to protect itself through insurance or negotiation or seeking a carrier who does not rely upon the RHA Conditions.[65]Turning finally to UCTA, issue 2(c), Muztrans accept that section 3 applies in principle to the relevant conditions, such that the question is whether or not the terms are fair and reasonable. Schedule 2 to UCTA identifies potentially relevant factors in determining this question:
“(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met; (b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term; (c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); (d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would by practicable”
[66]The statutory test has been the subject of judicial analysis in a number of cases. It is fair to say that the courts have been unenthusiastic about interfering with agreements reached between commercial parties. The authorities were summarised in Goodlife Foods Ltd v Hall Fire Protection Ltd [2018] B.L.R. 491, and I would emphasise the following passage in the judgment of Coulson LJ:
“5.2.2 the Importance of the Agreed Terms 61. A number of the authorities have stressed the importance of terms freely agreed by parties of broadly equal size and status. The starting point for that analysis is Photo Production Limited v Securicor Transport Limited [1980] AC 827 where, although the contract was made before UCTA, Lord Diplock said (page 848 F – G): "A basic principle of the common law of contract, to which there are no exceptions that are relevant in the instant case, is that parties to a contract are free to determine for themselves what primary obligations they will accept. They may state these in express words in the contract itself and, where they do, the statement is determinative; but in practice a commercial contract never states all the primary obligations of the parties in full; many are left to be incorporated by implication of law from the legal nature of the contract into which the parties are entering. But if the parties wish to reject or modify primary obligations which would otherwise be so incorporated, they are fully at liberty to do so by express words." The House of Lords held (in the absence of UCTA) that, where an exclusion clause was clear, the court was not entitled to reject it, however unreasonable it might think it to be. 62. In Granville Oil & Chemicals Limited v Davis Turner & Co Limited [2003] 2 Lloyd's Rep 356 at 362, Tuckey LJ said: "The 1977 Act obviously plays a very important role in protecting vulnerable consumers from the effects of draconian contract terms. But I am less enthusiastic about its intrusion into contracts between commercial parties of equal bargaining strength, who should generally be considered capable of being able to make contracts of their choosing and expect to be bound by their terms." A number of other judges, such as Christopher Clarke J in Balmoral , have shared that lack of enthusiasm (see paragraph 405 of the judgment in that case).”
[67]It is for Muztrans to show that the terms relied upon are fair and reasonable and I consider that they have so shown in the present case, for the reasons set out below: i) Both parties were commercial enterprises with approximately equal bargaining power (factor (a)); ii) Monarch was a major chemical distributor and used a number of different hauliers and chose Muztrans, who was one of a number of different available hauliers in the market (also factor (a)); iii) Both parties had traded on the terms for over 5 years since the agreement of the Muztrans Contract in 2012. It was clear from Mr Scott’s oral evidence that he knew or ought reasonably to have known of the existence and extent of the terms. He was well aware that carriers generally operated on the basis of the RHA Conditions. He was also aware, based on a consistent previous course of dealing between the parties, that this was Muztrans’ practice (factor(c)) ; iv) Both parties insured against the risks and/or had the opportunity to do so: Goodlife at paras 64-67; v) These were “terms freely agreed by parties of broadly equal size and status”, agreed after negotiation: Goodlife at paras 61-62.[68]In addition, and standing back, I consider that the RHA Conditions set out a comprehensive code for risk allocation, as explained above. To say that these conditions were unfair or unreasonable would be a wholly unrealistic and uncommercial conclusion.[69]That being so, I conclude that Conditions 6, 9, 11, 12 and/or 13 of the RHA Conditions have the meaning and effect set out above. They were incorporated into the contract between Monarch and Muztrans and they were reasonable within the meaning of the Unfair Contract Terms Act 1977. 3. Does paragraph 4 of the sealed Consent Order which records SESW’s discontinuance of the claim against Muztrans in full and final settlement of all claims between SESW and Muztrans constitute a judgment on Muztrans’ liability to SESW determining that it is not liable to SESW and which is conclusive in the contribution proceedings as to that issue for the purpose of s.1(5) of the 1978 Act?[70]This issue was first raised in Muztrans’ written opening. No criticism can attach to Muztrans for this, since the Consent Order had only been entered into a few days before the opening was delivered. However, this argument does raise an important point of practice.[71]Mr Quiney KC submits that SESW’s discontinuance of its claim against Muztrans “in full and final settlement of all claims between the Claimant and the Second Defendant arising out of or in connection with this action” constitutes “a judgment [in favour of Muztrans]…by or on behalf of the person who suffered the damage in question [i.e. SESW] against any person from whom contribution is sought under this section [i.e. Muztrans]” and thus is “conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought.” within the meaning of section 1(5). Thus, he submits, I am bound to find that there can be no order for contribution against Muztrans, whatever view I come to on issues 1, 2 and 4.[72]This is a striking submission. However, I do not consider that I need to lengthen this Judgment by expressing a conclusion on this issue. If I am right in the views I have expressed above in relation to issue 1 or issue 2, then there can be no contribution order against Muztrans in any event. If the Court of Appeal were to take a different view both of the questions of fact and degree encompassed in issue 1 and the contractual points the subject of issue 2, then it could (to the extent necessary) give guidance on the section 1(5) argument. There is little authority on that section, and authoritative guidance on that section is much more appropriately given by an appellate court than by a (Deputy) Judge.[4]If Muztrans is liable to make contribution to Monarch (Issue 1 above) and that is not excluded / limited or barred by the RHA Conditions 2009 (Issue 2 above; or alternatively the equivalent clauses under the RHA Conditions of Carriage 1998) and s.1(5) of the 1978 Act does not preclude such a claim (Issue 3 above): i) Is the liability of Muztrans to SESW in the same amount as Monarch or in a different amount? In particular: a) Was Monarch unable in law to rely on a defence of contributory negligence by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945 to SESW’s claim by reason of the nature of the claims made against it? b) Would any liability on the part of Muztrans to SESW have been subject to a reduction in respect of contributory negligence on the part of SESW? c) If there was contributory fault on the part of SESW, what is the percentage reduction that would have been applied? d) What would Muztrans’ liability to SESW have been in respect of the damage in question after any reduction for contributory negligence, for the purpose of identifying the cap on Muztrans’ liability to make contribution pursuant to s.2(3) of the 1978 Act? ii) Is the amount paid in settlement by Monarch reasonable? iii) What is the amount of contribution recoverable by Monarch from Muztrans that the Court would regard as just and equitable taking account of Muztrans’ and Monarch’s respective responsibilities for the damage pursuant to s.2(1)? This will include considering blameworthiness and causative potency in relation to each of the following matters: a) Was Mr Merryweather’s vehicle on the date of the Incident incorrectly loaded by Monarch? b) Was the labelling by Monarch of the IBCs prior to the Incident appropriate? c) Was Monarch at fault in having a mixed load of ferric sulphate and sodium hypochlorite/Spectrum chemicals on Mr Merryweather’s vehicle on the date of the Incident? d) Did Monarch and/or Muztrans have responsibility for training Mr Merryweather in respect of pump over deliveries during the period of the Monarch / Muztrans Contract and if so, in what respect(s)? e) The effect of any operative and effective contractual provisions agreed between the Monarch and Muztrans as to the allocation of risk between them.[73]Given the views I have expressed on issues 1 and 2, I will deal relatively briefly with these issues. Muztrans is not liable to make contribution to Monarch and any such liability is in any event excluded, severely limited or barred by the RHA Conditions 2009.[74]In case this case should go further, I shall briefly express my views on these issues, which were fully ventilated before me.[75]Sub-issue (i) requires consideration of the decision of the Court of Appeal in Barclays Bank Plc. v Fairclough Building Ltd. [1995] Q.B. 214. Simon Brown LJ, as he then was, explained the interaction of contractual obligations and the 1945 Act as follows at p.233:
“when…the contractual liability is by no means immaterial, when rather it is a strict liability arising independently of any negligence on the defendant's part, then there seem to me compelling reasons why the contract, even assuming it is silent as to apportionment, should be construed as excluding the operation of the Act of 1945. The very imposition of a strict liability on the defendant is to my mind inconsistent with an apportionment of the loss.”
[76]Ms Mulcahy submitted that this approach was in some way altered by the more recent decision of the Privy Council in Primeo Fund (In Official Liquidation) v Bank of Bermuda (Cayman) Ltd [2024] A.C. 727. I was not persuaded by this submission but, in any event, it seems to me that, if Barclays Bank Plc. v Fairclough Building Ltd. requires reconsideration, that is a matter for the Court of Appeal or the Supreme Court.[77]On the facts of this case, it seems to me that Monarch was unable in law to rely on a defence of contributory negligence by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945 to SESW’s claim by reason of the nature of the claims made against it. SESW’s pleaded claim against Monarch was based on strict as well as fault based liabilities. In particular, Warranty 8.1.3 states:
“[the delivery] will conform in all respects with the Order and any Specification provided by the Buyer”
. The delivery of Spectrum rather than ferric sulphate was a breach of this strict obligation, as it did not comply with both the Order and the specification. The settlement was necessarily founded on such a strict breach.[78]By contrast, the claims against Muztrans were founded on a duty of care alleged to exist in tort. Muztrans could, therefore, have availed themselves of a defence of contributory negligence in principle.[79]Doing the best I can, I think that a court would probably have made such a deduction, on the basis of the acts and omissions of Mr Hoy-Priest. The various reviews of the Incident support this conclusion.[80]For example, the SESW report of 3rd February 2017 stated as follows:
“Investigations identified that the following factors contributed to the cause of this event: i) The delivery vehicle was carrying more than one chemical, with both the ferric sulphate and the sodium hypochlorite mixture transported in blue containers of the same design; ii) Two chemical deliveries were taking place at the same time at Elmer (lime and ferric sulphate), supervised by only one person; iii) The driver didn’t comply with section 3.5.5 of the Monarch Chemicals Pressure Discharge Procedure, in that they should have checked the labelling on the IBC against that of the customer intake point (see Appendix G). iv) The Elmer WTW duty operator did not fully comply with the requirements of SESW’s SWP38; v) The position of the labelling of the containers was such that they were a considerable height above eye-level when mounted on the lorry and therefore not obvious to the driver or operator if they did not look up to check; vi) Anecdotal evidence suggests the driver expected his lorry to be loaded in a particular way and complacency meant that he assumed the positioning of his load rather than checking it prior to making the initial connection.”
[81]A few days later an “Elmer Water Treatment Works Incident, Independent Review”, was prepared by Mr Shemmans (a SESW Non-executive Director) on 15th February 2017, which notes that:
“The SESW operator is totally responsible for this delivery with the driver being a person in the chain. Oversight of the driver is essential. The operator should be present throughout and take the leadership role to ensure all is correct and checked. The operator should be alert to the risks. The chemical delivery process requires: Training, Awareness, Vigilance and Strict adherence to process by the operator… Vigilance, oversight of the driver, risk awareness at all times and that leadership role of the SESW operator being taken – one would have to question this aspect based on the written evidence. Neither the operator nor the driver noted that there could be an issue with multiple chemicals on the same truck. It is not known if the multiple B-680 chemicals on board were highlighted pre or post the event. Neither the driver nor the operator detected that the wrong barrel had been connected until a full barrel had been fully emptied and the second (correct) barrel had been connected. Certainly the quality of the appearance of the barrels should have alerted questions (they look poor), the difficulty in reading the barrel identification labels should have been noted, the number of barrels on the truck begging a question and a simple “are we sure we have connected everything correctly before we open the valve” should have been communicated. It is not known whether the SESW operator was present throughout and if these questions were asked – they were not reflected in the witness statements.”
[82]The Drinking Water Inspectorate, an independent regulatory body, reported in April 2017 and observed that:
“6.6 I conclude that SES Water did not have in place adequate procedures to prevent an event of this nature. Whilst the company was fortunate that on this occasion there were no consequences affecting drinking water quality or sufficiency, I consider that this event created serious risks to both quality and sufficiency, in addition to the serious risks to the health and safety of personnel on site and of local residents. These risks were clearly avoidable had the company taken steps to ensure the following… 6.7 I conclude that the company failed to carry out a proper risk assessment of this type of chemical delivery in order to inform the company's operational procedure for chemical deliveries. I am satisfied that the action that the company has put in place to prohibit deliveries of more than one chemical should prevent a recurrence of the event. 6.8 I conclude that the company's procedure SWP38 was inadequate. It should have included a requirement for the duty operator to check that the delivery hose is connected to the correct bulk tank on the vehicle, by checking the label on the bulk tank. Any delivery involving the transfer of chemical from more than one bulk tank on the same vehicle should have required the duty operator to witness the changeover of the hose and perform the same visual checks. The company's procedure also failed to require that checks made by the duty operator were properly recorded.”
[83]Taking these reports into account, together with such oral evidence as I heard, I conclude that any liability on the part of Muztrans to SESW would have been subject to a reduction in respect of contributory negligence on the part of SESW. It is clear that there was significant contributory fault on the part of SESW, so that a percentage reduction of about one third would have been applied. SESW acknowledged their own fault (see above). This reduction for contributory negligence would have fixed the cap on Muztrans’ liability to make contribution pursuant to s.2(3) of the 1978 Act.[84]It was common ground that the amount paid in settlement by Monarch was reasonable.[85]If I had had to consider the amount of contribution recoverable by Monarch from Muztrans taking account of Muztrans’ and Monarch’s respective responsibilities for the damage pursuant to s.2(1) of the 1978 Act, I would have said that the lion’s share should attach to Monarch given their day to day direction of Mr Merryweather. This would have produced the following outcome: i) SESW 33%; ii) Monarch 57% (85% of 67%); iii) Muztrans 10% (15% of 67%).

Conclusions

[86]My answers to the questions are, therefore, as follows: 1. Monarch is not entitled to a contribution from Muztrans pursuant to sections 1 and 6 of the Civil Liability (Contribution) Act 1978. In particular:a. Muztrans did not owe SESW a duty of care in tort.b. Muztrans is not vicariously liable for any negligence on the part of Mr John Merryweather jointly with Monarch.c. Muztrans is not liable to SESW in respect of ‘the same damage’ as Monarch. 2. If there had been any liability on the part of Muztrans to make contribution to Monarch, the same was excluded, limited or time barred by reason of the Monarch – Muztrans Contract and by reason of Conditions 9, 11, 12 and/or 13 of the RHA Conditions 2009. In particular: a. Conditions 6, 9, 11, 12 and/or 13 had the meaning and effect set out in this Judgment. b. The RHA Conditions of Carriage 2009, and in particular Conditions 9, 11, 12 and 13, were fully incorporated into the contract between Monarch and Muztrans. c. The terms on which Monarch contracted with Muztrans were reasonable within the meaning of the Unfair Contract Terms Act 1977. 3. I express no conclusion on whether paragraph 4 of the sealed Consent Order which records SESW’s discontinuance of the claim against Muztrans in full and final settlement of all claims between SESW and Muztrans constitutes a judgment on Muztrans’ liability to SESW determining that it is not liable to SESW and which is conclusive in the contribution proceedings as to that issue for the purpose of s.1(5) of the 1978 Act. It is not necessary or appropriate to decide this question given my conclusions on issues 1 and 2. 4. Muztrans is not liable to make contribution to Monarch (Issue 1 above) and any such liability is excluded / limited or barred by the RHA Conditions 2009 (Issue 2 above). However, if I had come to a different conclusion on issues 1 and 2, my conclusions on the sub-issues are as follows: a. The liability of Muztrans to SESW would be in a different amount to that of Monarch. In particular: i. Monarch was unable in law to rely on a defence of contributory negligence by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945 to SESW’s claim by reason of the nature of the claims made against it. ii. Any liability on the part of Muztrans to SESW would have been subject to a reduction in respect of contributory negligence on the part of SESW. iii. The contributory fault on the part of SESW would have led to a percentage reduction of 33%. iv. This percentage reduction would have been relevant for the purpose of identifying the cap on Muztrans’ liability to make contribution pursuant to s.2(3) of the 1978 Act. b. The amount paid in settlement by Monarch was reasonable. c. In relation to the amount of contribution recoverable by Monarch from Muztrans that the Court would regard as just and equitable taking account of Muztrans’ and Monarch’s respective responsibilities for the damage pursuant to s.2(1), their respective shares would have been 85% and 15%.