Dear Colleagues;
While only a trial decision, the case of Colour Quest Ltd & Ors v Total Downstream UK Plc & Ors [2009] EWHC 540 (Comm) (20 March 2009) http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Comm/2009/540.html is fascinating for a number of reasons. Steel J makes a number of findings about civil liability flowing from the massive explosion at Buncefield back in Dec 2005. Of particular legal interest I found
- discussion of vicarious liability- paras [205]-[313] (there were two major companies involved, Total and HOSL, and the admittedly negligent employee was formally employed by Total but under direction at work from HOSL; Steel J briefly discussed the possibility of "dual" vicarious liability a la Viasystems but concluded that the "usual" rule should apply and that Total had been and always remained the actual employer);
- Comments on Rylands v Fletcher- interestingly the companies accepted R v F liability for all damage outside the fence of the factory: [395]-[406];
- there is then some discussion about whether R v F is a form of nuisance or not, and whether there is an action in nuisance for a "one-off" escape (held- there is)- [408]-[421];
- comments on public nuisance as a possible action [422]-[464];
- And right at the end, an interesting discussion of liability for economic loss in negligence and an attempt by Shell to apply the Australian HC decision of Caltex Oil v The Dredge Willemstad (though not successfully).
I am also interested under one of my other hats in the criminal OHS liability of the companies involved, and was fascinated to see the comment at [28] that this immensely complex civil litigation had now concluded, before the Health and Safety Executive had even managed to get committal proceedings going.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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