MORRISON v PEACOCK & ROSLYNDALE SHIPPING CO PTY LIMITED [2000] NSWCCA 452

MORRISON v PEACOCK & ROSLYNDALE SHIPPING CO PTY LIMITED [2000] NSWCCA 452

Wear and tear causing oil to escape can, as a matter of law, come within damage for the purposes of the s8(2)(b) defence because the ordinary meaning of damage in Regulation 11 and s8 is not restricted by the cause of the physical effect, except for intentional or reckless damage expressly excluded. The recklessness inquiry under s8(3)(b) is not an objective prudent-person inquiry but requires actual advertence and knowledge that damage would probably result. On the evidence, Pearlman J was entitled to infer that the Respondents were not reckless, so it could not be said that only one finding was open.

Jurisdiction
Australia
Judgment Date
30 October 2000
Procedural Posture
Criminal Appeal; Questions of Law Submitted Under S5 AE of the Criminal Appeal Act 1912 / Court of Criminal Appeal Hearing From Land and Environment Court Proceedings After Dismissal of Charges
Outcome
Questions answered: Question (i)(a) Yes; Question (i)(b) Decline to answer; Question (ii)(a) In order to determine whether a person acted recklessly for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen; Question (ii)(b) Yes.
Legal Topics
['marine Pollution Act 1987 (nsw) S8' 'discharge of Oil From a Ship Into State Waters' 'statutory Defence for Discharge Resulting From Damage' 'meaning of Damage' 'wear and Tear' 'meaning of Recklessly' 'subjective and Objective Tests' 'international Convention for the Prevention of Pollution From Ships, 1973']
['criminal Law' 'environmental Law' 'statutory Interpretation' 'treaty Interpretation' 'marine Pollution'] ['marine Pollution Act 1987 (nsw) S8' 'discharge of Oil From a Ship Into State Waters' 'statutory Defence for Discharge Resulting From Damage' 'meaning of Damage' 'wear and Tear' 'meaning of Recklessly' 'subjective and Objective Tests' 'international Convention for the Prevention of Pollution From Ships, 1973']

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Procedural Posture

Criminal Appeal; Questions of Law Submitted Under S5 AE of the Criminal Appeal Act 1912 / Court of Criminal Appeal Hearing From Land and Environment Court Proceedings After Dismissal of Charges

Legal Issues

  1. 1 ['Whether, as a matter of law, wear and tear in consequence of which oil escapes can come within the word damage under s8 of the Marine Pollution Act 1987.' 'Whether the particular wear and tear in the circumstances of the case can come within the word damage in s8 of the Marine Pollution Act 1987.' 'Whether, as a matter of law, in determining whether a person acted recklessly for the purposes of s8(3)(b), it is appropriate to apply a subjective or objective test.' 'Whether on the evidence it could properly have been found that the defendant did not act recklessly.']

Ratio Decidendi

Wear and tear causing oil to escape can, as a matter of law, come within damage for the purposes of the s8(2)(b) defence because the ordinary meaning of damage in Regulation 11 and s8 is not restricted by the cause of the physical effect, except for intentional or reckless damage expressly excluded. The recklessness inquiry under s8(3)(b) is not an objective prudent-person inquiry but requires actual advertence and knowledge that damage would probably result. On the evidence, Pearlman J was entitled to infer that the Respondents were not reckless, so it could not be said that only one finding was open.

Court Disposition

Questions answered: Question (i)(a) Yes; Question (i)(b) Decline to answer; Question (ii)(a) In order to determine whether a person acted recklessly for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen; Question (ii)(b) Yes.

Orders

  • ['Question (i)(a): Yes.' 'Question (i)(b): Decline to answer.' 'Question (ii)(a): In order to determine whether a person acted "recklessly" for the purposes of s8(3)(b) it is not appropriate to inquire what a prudent person would consider might happen.' 'Question (ii)(b): Yes.']