Citation: Morrison v Peacock & Roslyndale Shipping Co Pty Limited [2000] NSWCCA 452
Court: Court of Criminal Appeal, New South Wales
Date: 30 October 2000
Judge(s): Spigelman CJ; Wood CJ at CL; Barr J
Background
On 1 December 1996, a vessel moored at Lord Howe Island was unloading cargo using an onboard crane. A hydraulic hose fitted to the crane ruptured, causing approximately fifteen litres of hydraulic oil to discharge under pressure, with around five litres escaping into the water.
The vessel's master and its owner were prosecuted for contravening s 8(1) of the Marine Pollution Act 1987 (NSW), which prohibits the discharge of oil into waters. Both respondents relied on the statutory defence in s 8(2)(b) of the Act, which is available where an escape results from damage and the person took all reasonable precautions.
The trial judge in the Land and Environment Court, Pearlman J, found that the respondents had made out each element of the statutory defence and dismissed the charges. At the prosecutor's application, Pearlman J submitted four questions of law to the Court of Criminal Appeal for determination under s 5AE of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether wear and tear causing an oil escape can, as a matter of law, constitute "damage" for the purposes of s 8 of the Marine Pollution Act 1987.
- Whether the particular wear and tear in the circumstances of this case constituted "damage" within s 8 (a question of fact as well as law).
- Whether the test for "recklessly" in s 8(3)(b) of the Act is subjective or objective.
- Whether the evidence in this case could properly support a finding that the respondents did not act recklessly.
Decision
On "damage" and wear and tear: The Court held that wear and tear capable of causing an oil escape can, as a matter of law, fall within the word "damage" in s 8. Nothing in the text of the provision or the underlying international instrument (Regulation 11 of Annex I of the 1973 Convention) supported reading "damage" narrowly by reference to how the physical deterioration came about. The Court rejected the proposition that a broad word like "damage" should be given a restrictive meaning simply because the legislative objective is to minimise pollution.
On the particular facts: The Court declined to answer the second part of the "damage" question, on the basis that it raised no question of law. Whether the specific wear and tear in this case amounted to "damage" was a factual matter not appropriate for determination under the questions referred.
On "recklessly" and the applicable test: The Court held that the test for recklessness in s 8(3)(b) is subjective, not objective. The express statutory qualification linking "recklessly" to "knowledge that damage would probably result" requires actual advertence by the owner or master to the risk of damage. It is not appropriate to ask what a prudent person would have considered might happen. The Court distinguished the objective approach taken in English authorities such as Caldwell and Lawrence.
On the evidence of recklessness: The Court confirmed that Pearlman J's factual findings were open on the evidence. Her Honour was entitled to rely on the facts that experts had assembled and tested the crane, that the crane had operated without failure for six months, and that inspection might not have revealed the internal abrasion. Those findings supported the conclusion that the respondents did not have knowledge that damage would probably result. Only one finding was not compelled, and the question was answered "Yes."
Orders Made
- Question (i)(a): Yes (wear and tear can, as a matter of law, constitute "damage" under s 8).
- Question (i)(b): Declined to answer (no question of law arises).
- Question (ii)(a): In order to determine whether a person acted "recklessly" for the purposes of s 8(3)(b), it is not appropriate to inquire what a prudent person would consider might happen.
- Question (ii)(b): Yes (it was open on the evidence to find that the respondents did not act recklessly).
Key Takeaways
- Under s 8 of the Marine Pollution Act 1987 (NSW), "damage" is given its broad ordinary meaning and is not confined to damage caused by external forces or sudden events. Wear and tear that causes an oil escape may, as a matter of law, constitute "damage" for the purposes of the provision.
- A treaty or convention is to be interpreted according to the ordinary meaning of its words in light of its object and purpose. That interpretive approach does not permit general words to be narrowed simply because doing so might better achieve a protective legislative purpose.
- Recklessness under s 8(3)(b) requires subjective advertence to the risk of damage. The statutory language linking recklessness to "knowledge that damage would probably result" makes an objective or "reasonable person" test legally inappropriate.
- The Court of Criminal Appeal, when answering referred questions under s 5AE of the Criminal Appeal Act 1912, will decline to answer questions that do not raise a genuine question of law, even where those questions were framed in legal terms.
- Where a trial judge makes findings of fact supported by evidence and no single finding was compelled as a matter of law, the Court of Criminal Appeal will not disturb those factual conclusions on a referred question.
Legislation and Cases Referenced
Legislation:
- Marine Pollution Act 1987 (NSW), ss 7, 8(1), 8(2), 8(3)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Prevention of Oil Pollution of Navigable Waters Act 1960 (NSW)
- Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth)
- Pollution of Waters by Oil and Noxious Substances Act 1986 (Vic)
- Pollution of Waters by Oil and Noxious Substances Act 1987 (SA, Tas, WA)
- Transport Operations (Marine Pollution) Act 1995 (Qld)
- International Convention for the Prevention of Pollution from Ships 1973, Annex I, Regulation 11
Key Cases:
- Morrison v Spliethoffs Bevrachtingscantoor BV (1996) 91 LGERA 318
- Morrison v Dilmun Navigation Co Pty Ltd (1995) 78 A Crim R 576
- Morrison v ANL, Leighton and Turner (1996) 88 A Crim R 122
- Metropolitan Police Commissioner v Caldwell [1982] AC 341
- R v Lawrence [1982] AC 510
- Goldman v Thai Airways International Ltd [1983] 1 WLR 1186
- SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd's Rep 288
- Nugent v Michael Goss Aviation Ltd (Court of Appeal Civil Division, 14 April 2000, unreported)
- Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225
- Rodriguez v United States 480 US 522 (1987)
- Billericay Rural District Council v Guardians of the Poor of the Popular Poor Law Union [1911] 2 KB 801