Ben Quiney KC successfully defends major chemical escape claim
28th May 2026
Sutton And East Surrey Water Plc v Monarch Chemicals Ltd & Muztrans [2026] EWHC 1260 (TCC)
Ben Quiney KC succeeded at trial in a TCC claim arising from a misdelivery of chemicals that caused an escape of chlorine gas that caused significant damage to a water treatment plant. Ben acted for the Second Defendant haulage company resisting a contribution claim made by the First Defendant chemical company following its settlement with the Claimant water company. Adrian Williamson KC, sitting as a Deputy High Court Judge, decided that Ben’s client succeeded and the claim for £5.6M should fail. The dispute raised a multitude of interesting and complex legal issues ranging from vicarious liability to exclusions and limitation in standard terms and conditions, and the operation of the Civil Liability (Contribution) Act 1978. It is one of the few cases where the operation of the dual vicarious liability principle has been considered since Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] Q.B. 510. Ben was instructed by Hanna Platt of Clyde & Co LLP.
The relevant facts and issues were as follows:
- The escape of chlorine gas occurred on 2 February 2017 at Elmer Water Treatment Works in Leatherhead, Surrey KT22 9DL (“Elmer”). The incident followed the delivery of chemicals to Elmer purchased by the water company (“SESW”) from the chemical company (“Monarch”). The delivery driver pumped the wrong chemicals into one of SESW’s tanks. This caused an escape of chlorine gas as a result of a chemical reaction. The delivery driver was an employee of the haulier (“Muztrans”) who was supplied to Monarch under a long term contract. SESW brought a claim against both Monarch and Muztrans.
- The trial dealt with the dispute between Monarch and Muztrans as to the responsibility for the incident. This followed Monarch’s settlement with SESW for over £5.6M. The trial included disputes as to: which of the Defendants might be responsible for the acts of the driver; and the impact of various contracts between the parties, including the effect of the 2009 Road Haulage Association Conditions (“the RHA Conditions”). It was accepted by the parties that the driver made an error when he misdelivered the chemicals. Monarch pursed its claim for a contribution under the Civil Liability (Contribution) Act 1978 (“the 1978 Act”).
- There were essentially three main issues: the vicarious liability for the driver’s actions; the application of the contract between Monarch and Muztrans; and if there was a liability, how to apportion liability under the 1978 Act. There was a fourth subsidiary issue as to the effect of s. 1(5) of the 1978 Act.
- The Deputy Judge decided that Monarch’s claim should fail and Muztrans’ arguments succeeded.
- As to vicarious liability, the Deputy Judge decided that Monarch was solely responsible for the acts of the driver. Monarch contended that this was a case where a finding of dual vicarious liability was appropriate following the decisions in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] Q.B. 510 and The Catholic Child Welfare Society v The Institute of the Brothers of the Christian Schools [2013] 2 AC 1. The Deputy Judge disagreed. Following the tripartite categorisation adopted in the analysis of Rix LJ in Viasystems he concluded that the facts demonstrated that the driver had been embedded within Monarch’s business for a significant period and was essentially acting as their employee, not least because Monarch had trained him in the particular specialised operation that he failed to properly complete on the day of the delivery. The Deputy Judge did not consider that the fact that the driver remained Muztrans’ employee was a countervailing factor.
- As to the contract between the parties and the incorporation of the RHA Conditions, Monarch argued that: the terms were too onerous or unreasonable; and that they did not apply to limit or exclude liabilities for damage to third party property. The Deputy Judge concluded that the parties had agreed to be bound by the RHA Conditions and they were a commonplace and legitimate commercial bargain to allocate risks. He decided that: the onerous clause doctrine described in MS Amlin Marine NV v King Trader Ltd [2026] 2 WLR 163 did not apply; the terms were reasonable within the meaning of the Unfair Contracts Terms Act 1977; and the various limitations and exclusions did apply to damage to SESW’s property caused by the misdelivery of the chemicals. In particular he declined to follow the reasoning in the first instance decision of DRL v Wincanton Group Ltd [2010] EWHC 2896 (QB) and instead relied upon the reasoning in Campbell v Conoco UK Ltd [2003] 1 All ER (Comm) 35 as to the breadth of the language used.
- Having found that Muztrans was not liable to Monarch on either the basis of vicarious liability or as a result of the RHA Conditions the Judge then went on to deal with the operation of the 1978 Act in case he was wrong on those matters. He decided that on the issue of apportionment that Muztrans would have had a defence of contributory negligence when Monarch would not, when facing the SESW claim. This was based on the strict contractual duties owed and breached by Monarch to SESW. He disagreed with Monarch’s submission that Barclays Bank Plc v Fairclough Building Ltd (No 1) [1995] QB 214 was overruled or modified by Primeo Fund v Bank of Bermuda [2024] AC 727. He accepted that it followed that Muztrans would have had a limited allocation of liability if it had been found liable. The allocation was 85%/15%.
- He also noted that Muztrans raised an argument as to the effect of s.1(5) of the 1978 Act. The argument was based on the fact and language of the sealed consent order settling the SESW terms. It was alleged that it had the effect of providing Muztrans with a full defence under s.1(5). Given his findings on the main issues and the “striking” nature of the argument he declined to rule on this issue.
The Judgment can be found on Bailli as follows:
