What are the chances?
SOURCE: CIWM, APRIL 2010
The High Court has ruled on the meaning of the phrase "likely to cause contamination", in a case concerning water legislation. However, since this type of phrase recurs across much UK environmental and waste legislation (e.g. s.33 of the EPA 1990, which makes it an offence to treat or keep waste in a manner likely to case pollution) the judgment is of wider interest.
The case highlights (not for the first time) the dangers of taking words at face value. What does “likely” mean in this context? The appellant had argued that the lower court should not have taken into account the severity of the consequences of contamination, should it occur, since this did not affect the probability (or “likelihood”) of contamination occurring.
However, the Court upheld previous judgments, which had determined that the phrase meant that contamination was a "real possibility … that cannot sensibly be ignored having regard to the nature and gravity of the feared harm". It confirmed that the phrase did not, as the appellant had contended, mean "probable", as it would undermine the purpose of the legislation if the risk of the harm occurring had to be "more likely than not" in order for action to be taken.
Of course, whether or not there is a "real possibility" of contamination occurring is entirely dependent on the situation and the facts. However, the judgment confirms that it might not take much, and that a mere (albeit real) “possibility” is all that is required, and that you should take potential severity into account. All in all, it’s a very wide interpretation of the term “likely”.
AUTHOR: VINCENT BROWN
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