Environment Protection Authority v George Weston Foods Limited - [2013] NSWLEC 16 - NSWLEC 2013 case summary — Zoe

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Environment Protection Authority v George Weston Foods Limited

[2013] NSWLEC 16

Land and Environment Court (NSW)|2013-02-13|Before: Pain J, Lloyd J, Ms P

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-02-13

Before

Pain J, Lloyd J, Ms P

Catchwords

(2006) 145 LGERA 234 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47
(2006) 148 LGERA 299 Hoare v R [1989] HCA 33
(1989) 167 CLR 348 R v Sharma [2002] NSWCCA 142
(2002) 54 NSWLR 300 R v Thomson

Source

Original judgment source is linked above.

Catchwords

(2006) 145 LGERA 234 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47(2006) 148 LGERA 299 Hoare v R [1989] HCA 33(1989) 167 CLR 348 R v Sharma [2002] NSWCCA 142(2002) 54 NSWLR 300 R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383 R v Olbrich [1999] HCA 54

Judgment (32 paragraphs)

[1]

Background 9The Defendant is one of Australia and New Zealand's largest food manufacturers employing about 6,500 employees across about 60 sites in Australia and New Zealand. 10The Defendant's operations are structured into four divisions, one of which trades as "Jasol". The Jasol division of the Defendant is a manufacturer and supplier of chemicals and products for cleaning and industrial use. Jasol was the division of the Defendant that was involved in the incident that is the subject of these proceedings. 11Kitco is an interstate transport company with depots in Brisbane, Sydney, Melbourne and Koo Wee Rup in Victoria. Kitco has a fleet of over 30 prime movers and 80 trailers. At the time of the offences, Kitco employed drivers Mr Robert Dennis and Mr Ian Temby. Mr Dennis had worked for Kitco on and off for five to ten years doing loading, distributing loads and pickups. He had never held a dangerous goods driver licence. Mr Temby had been employed as a full time driver by Kitco since 28 July 2010.

[3]

Loading of Kitco's vehicle on 23 December 2010 14Prior to 23 December 2010, an employee of the Defendant orally requested that Kitco transport a load of the Defendant's products from the Defendant's premises at 41-45 Tarnard Drive, Braeside, Victoria (the Braeside premises) to GWF's premises in Stapylton, Queensland, approximately 40 km south east of Brisbane. The Defendant's employee who requested the transportation of the load did not advise Kitco that the load would contain dangerous goods. 15Kitco arranged for an employee, Mr Dennis, to attend the Defendant's premises to pick up the load. Mr Dennis was not provided with any documentation or shipping documents prior to attending the Defendant's premises. 16On 23 December 2010, Mr Dennis attended the Braeside premises driving Kitco's prime mover with registration VV97HI and towing trailers with registration VT28FL (Trailer A) and registration VT98FJ (Trailer B). The prime mover, Trailer A and Trailer B were each registered to Kitco. Both trailers were tautliners with curtain sides. 17An employee of the Defendant, most probably the Defendant's main loader Mr Benjamin Drake, loaded Trailer A with the following dangerous goods, all of which are classified as Class 8 (corrosive substances) packing group II:

CIP Alkali NA40 - 6 x 1000L intermediate bulk containers (IBCs) containing sodium hydroxide solution (heavy duty alkaline CIP detergent).
CIP Alkali NA40 - 32 x 20L drums containing sodium hydroxide solution (heavy duty alkaline CIP detergent).
EL Deckhand - 64 x 20L drums (corrosive liquid, acidic, organic).
Oven cleaner - 180 cartons (3 x 5L per carton) (caustic alkali liquid) (heavy duty oven and hot plate cleaner). 18Mr Dennis was present when Trailer A and Trailer B were loaded and saw the Defendant's loader put the six IBCs of sodium hydroxide onto Trailer A. 19The presence of the six IBCs of sodium hydroxide triggered the dangerous goods licensing requirements and placarding requirements, as described in more detail below. 20Also loaded onto Trailer A and/or Trailer B were some non-dangerous goods, including large quantities of laundry liquid, hand soaps and hand wash. 21The Defendant was the consignor of the dangerous goods and Kitco was the prime contractor for the dangerous goods, within the meaning of the Act. 22Once the goods had been loaded, Mr Dennis replaced the metal side gates and curtains on the trailers. One of the Defendant's staff, most likely warehouse supervisor Mr Ray Haylock, provided Mr Dennis with a consignment note no 247228 dated 23 December 2010. 23Mr Dennis did not read the documents he was given prior to departing the Braeside premises. Mr Dennis claims that no one from the Defendant verbally told him that dangerous goods had been loaded onto the vehicle. Neither the Defendant's employees nor Mr Dennis affixed any placards or emergency information panels (EIPs) to the vehicle. No one instructed Mr Dennis to affix placards or EIPs to the vehicle. 24When Mr Dennis drove away from the Braeside premises carrying the load of dangerous goods, there were no placards or EIPs displayed on Trailer A, Trailer B or the prime mover, in breach of the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code) (7th edition, published in 2007). 25Mr Dennis drove the loaded trailers to Kitco's premises at Koo Wee Rup in Victoria (the Koo Wee Rup premises). He parked the vehicle and detached Trailers A and B from the prime mover, so that the trailers could be picked up by another Kitco driver with another prime mover. He left the paperwork the Defendant had provided to him in the tool box of one of the trailers. 26Mr Dennis did not hold a dangerous goods driver licence under the Regulation. Neither trailer driven by Mr Dennis had a dangerous goods vehicle licence under the Regulation.

[20]

Further evidence 67The affidavit of Ms Michelle O'Brien dated 29 January 2013 was read in Court. Ms O'Brien is the finance director and a senior executive of Jasol. Ms O'Brien was authorised to make the affidavit on behalf of the Defendant. Ms O'Brien states that the Defendant has cooperated with the EPA at all times by responding to statutory notices to provide information and/or records, employees of the Defendant participated in recorded interviews conducted by the EPA and the Defendant worked with the EPA to prepare an agreed statement of facts. Ms O'Brien has stated that the Defendant entered an early guilty plea. Ms O'Brien also stated that the Defendant "takes safety and environmental matters extremely seriously" and "expresses its genuine deep remorse and contrition" in relation to the failures it has accepted. These failures are not ensuring proper placarding or safe loading, not notifying the transporter of the presence of dangerous goods, not making enquiries into the licences of the transporter and having inadequate training programs concerning all these respects. 68The supplementary affidavit of Ms O'Brien dated 8 February 2013 was also read. It states that the Defendant has no prior convictions under the Act, the Defendant has not been convicted of an environmental offence in relation to Jasol, the Defendant has two prior convictions in the Land and Environment Court of NSW for water pollution offences, the Defendant was convicted in Victoria's Ringwood Magistrates' Court for the breach of a licence condition and the Defendant has been issued with a number of penalty notices, principally for smoky vehicle emissions. Ms O'Brien stated that the circumstances and events surrounding these offences bear no similarities to the offence in the current case. 69The affidavit of Ms Sophie Prudhomme dated 24 January 2013 was also read. Ms Prudhomme was authorised to make the affidavit on behalf of the Defendant. She was the Regional Health, Safety and Environment Manager NSW employed by the Defendant. Ms Prudhomme stated that since approximately April 2011 the Defendant has been in the process of developing and implementing a new health, safety and environment system that is comprehensive and applies to all sites in Australia and New Zealand. New policies have been implemented including a Health and Safety Policy, Environment & Sustainability Policy, and Mr Good has been employed at Braeside as the full time Health, Safety and Environment Coordinator. A Dangerous Goods Dispatch Checklist has been formulated, with effect from 31 March 2011, to ensure placarding, displaying emergency information panels, dangerous goods licensing of drivers and vehicles and appropriate transport documentation. This checklist is to be completed by the warehouse supervisor or the Jasol employee responsible for loading. If dangerous goods are present, the truck driver must also complete the checklist. All Jasol staff involved in transporting, handling or storing dangerous goods attended an external training course on the management of dangerous goods provided by a company accredited by WorkSafe Victoria. 70Mr Good informed Ms Prudhomme that standard operating procedures have been implemented concerning the despatch, labelling, order picking in bulk and order picking packages, the latter two of which are site-specific procedures to Braeside. The despatch standard operating procedure requires warehouse staff to identify all dangerous goods to be despatched and to advise the transport company of the number of pallets and the breakdown of dangerous goods to be transported. The responsible employees informed Ms Prudhomme that enhanced induction training in accordance with the standard operating procedures has also occurred. An ongoing system of internal audits is also in place. The long haul contractor has been changed from Kitco to Northline and the agreement with Northline includes obligations on Northline in relation to dangerous goods. The Defendant is in the process of implementing a learning management system to facilitate, track and provide evidence of training; a risk management database to provide transparency, accountability and communication about incidents; a legislative matrix to ensure that processes meet legislative requirements, and group procedures to instruct how the Defendant meets its legislative obligations and the Defendant's standards.

[22]

Extent of harm caused or likely to be caused by the offence 72The EPA submitted that the objective harmfulness of the Defendant's actions were relevant to determining the seriousness of the crime per Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234. In this case that is adverse impact on road users, the general public and the broader environment. It includes the potential or risk of harm per Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357. No actual harm was caused by the offence but there was potential for harm. 73The dangerous goods that are the subject of these proceedings were Class 8 dangerous goods, being substances which, by chemical action, cause severe damage when in contact with living tissue, or, in the case of leakage, will materially damage, or even destroy, other goods or the means of transport (SOAF, par 54). As set out in the SSOAF, the six IBCs containing sodium hydroxide in Trailer A were not restrained in accordance with the requirements of Part 8 of the Regulations, which incorporates the requirements of Part 8 of the ADG Code. The ADG Code in turn requires compliance with the Load Restraint Guide (prepared by the National Transport Commission and the Roads and Traffic Authority of NSW, 2nd edition, 2004 (SSOAF, par 4). 74Although the IBCs in Trailer A were behind vertical side gates and a rope was tied across the gates, this was clearly inadequate to restrain the load. The rope was not in contact with the top of the IBCs. Adequate restraint of the IBCs would have involved the application of force to the top of each IBC in an amount of at least 20 per cent of the weight of each IBC (see p 21 of the Load Restraint Guide), for example by the use of webbing straps (SSOAF, par 4). 75The purpose of having accurate placards and EIPs in prominent places on a vehicle transporting dangerous goods is to warn other road users of the risks relating to the vehicle's load, and to ensure that emergency response personnel are readily able to determine the most appropriate action to take in the event of an emergency. In the event of an accident involving the vehicle, the contents of the load would not have been immediately apparent to emergency personnel. This had the potential to delay any emergency response whilst the nature of the dangerous goods on board the vehicle was identified. 76The Defendant asked the Court to take into account that IBCs are a type of container defined under cl 15 of the Regulation to meet particular structural and design specifications set out in Chapter 6.5 of the Code to meet the objective of safe transport. The Defendant asked the Court to note that where dangerous goods are transported in IBCs, different requirements for transporting apply where the amount transported is 3,000 litres or less. In that case no licensing of the vehicle or driver is required (cl 189 of the Regulation). The Defendant accepts that 6,000 litres of sodium hydroxide were being transported and that placarding requirements applied regardless of how much was transported in IBCs. I note however that not all the dangerous goods the subject of the charge were in IBCs. 77The EPA's submission that the failure to safely secure the six IBCs of sodium hydroxide increased the risk of human injury or death and increased the risk of environmental harm in the event of an accident was disputed. The Defendant disputed the EPA's submission that as the IBCs each weighed about one tonne and were not secured in accordance with the Regulation there was an obvious risk of these toppling out of the vehicle if it travelled at speed or had to brake sharply, thereby posing a risk of severe injury to any people nearby. The IBCs were in separate cages and stored at the front of the truck next to the gate. There is no evidence adduced to support this and as the Defendant submitted it is not an element of the offence accepted as a result of the guilty plea. Without evidence which establishes these submissions beyond reasonable doubt per R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, the EPA cannot rely on these matters. The Defendant's submission that it accepted there was a theoretical risk of injury resulting from the offence, but no actual risk was proven, is accepted.

[23]

Practical measures that may be taken to prevent, control, abate or mitigate that harm 78The practical measures that could have been taken to prevent, control, abate or mitigate the environmental harm caused or likely to be caused to the environment by the commission of the offence is another relevant consideration. "An offence is objectively more serious if commission of the offence and the risk of harm occasioned by the commission of the offence, are foreseeable and there are practical measures that could be taken to prevent, control, abate or mitigate the occurrence of the offence or the harm, but those practical measures are not taken": Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [173]. 79In this case, simple steps could have been taken to prevent the offence, as indicated by the steps the Defendant put in place after the offence to prevent a recurrence. The Defendant accepted these submissions. Its evidence that substantial measures in terms of changes to procedures and compulsory training had been taken since the offence to ensure there would be no reoccurrence were accepted by the EPA. 80In relation to the events on the day of the offence, the Defendant submitted that on the facts it had no further involvement in the transport of the goods after these were loaded at the Braeside premises in Victoria. One Kitco driver collected the materials from the Defendant's premises and drove them to Kitco's premises. Another Kitco driver drove the goods from the Kitco premises towards Queensland. That driver was stopped by police for reasons unrelated to the carriage of the goods. This resulted in the inspection where the failure to comply with dangerous goods regulatory requirements was noted by the police. While these facts can be accepted the failures that gave rise to the offence first occurred on the Defendant's premises. I acknowledge that the labelling of the IBCs correctly identified the contents as dangerous goods.

[26]

Specific deterrence 84The EPA submitted that specific deterrence should be taken into account in the assessment of penalty in this case, because the Defendant continued to be engaged in the storage, handling and transport of dangerous goods. The Defendant submitted that this consideration does not weigh heavily in the circumstances of this case having regard to the measures taken to prevent recurrence. 85In Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at [48]-[49] I stated: [48] Specific deterrence is a purpose of sentencing under s 3A(b) of the CSP Act and has been considered relevant where a defendant continues in the same area of operation in which an incident has occurred. In taking specific deterrence into account in Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 (Moolarben (No 2)) Craig J cited at [113] the following passage in Axer at 359 per Mahoney JA: "The legislation does not seek merely to prevent deliberate or negligent pollution. It envisages that, at least in many cases, proper precautions must be taken to ensure that pollution does not occur. Experience has shown that it is not enough merely to take care: accidents will happen. The legislation envisages that in many cases care must be supplemented by positive precautions; business must be arranged and precautions taken so as to ensure that pollution will not occur". [49] Specific deterrence is appropriate for corporate defendants to catalyse rehabilitation so that the company takes the required steps to prevent repetition (See BJ Preston, "Principled Sentencing for Environmental Offences", a paper presented to the 4th International IUCN Academy of Environmental Law Colloquium, 16 - 20 October 2006 at p 5.) 86The extensive legislative obligations imposed on consignors and loaders of dangerous goods is identified in cls 80, 81 and 99 of the Regulation. I accept that measures have been taken since the offence which would prevent a recurrence but these were substantially lacking at the time of the offence. The Defendant's employee who placed the order did not advise Kitco that the load contained dangerous goods. The loader, the Defendant's employee, had received no instructions or training in relation to the loading, unloading or transporting of dangerous goods and was unaware of the legislative requirements for placarding and licensing requirements. The Defendant did not have any written procedures in place for the transport of dangerous goods. The warehouse supervisor had received some training in dangerous goods handling and possibly provided the consignment note to the Kitco driver which identified the goods as dangerous but apparently took no other action. 87Given the longstanding operation of the Jasol division, as part of the Defendant since 1986, the substantial size of the Defendant, its business of food manufacturing (SOAF par 13), and that Kitco had been transporting dangerous goods on a daily basis between the Defendant's warehouses for several years (SOAF par 61), it is concerning that there were no effective procedures in place on the day of the offence to ensure compliance with the Act and Regulation. The procedures now implemented were necessary and fundamental if legislative compliance is to be achieved. In these circumstances specific deterrence is a relevant sentencing consideration.

[29]

Evenhandedness 91The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty (R v Visconti [1982] 2 NSWLR 104). This principle must always be applied subject to the particular circumstances of the case before the Court (Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 354). 92Previous cases in this Court have dealt with offences under s 37(1) of the Road and Rail Transport (Dangerous Goods) Act 1997, which is equivalent to s 9(1). The maximum penalty was then $250,000. These include Environment Protection Authority v Moama Refinery Pty Ltd [2002] NSWLEC 244 and Environment Protection Authority v Embridge Crest Pty Ltd [2002] NSWLEC 238. In Moama, the defendant was the operator of a refinery which packed and placarded dangerous goods for transport. It was the owner and consignor of these goods. That case involved leaking drums of solvent inside a truck which was not correctly placarded. These leaking drums created a risk of liquid catching fire in the area surrounding the vehicle. The defendant had no written procedure in place for assessing whether the storage drums were suitable for the liquid they contained. Embridge arose from the same incident the subject of which constituted the proceedings in Moama. The Prosecutor accepts that the seriousness of the offence in this case is less than that in Moama and Embridge, where fines of $45,000 and $30,000 were awarded respectively after discounts for mitigating circumstances. 93In Environment Protection Authority v MacDermid Overseas Asia Ltd [2007] NSWLEC 225 where the offence resulted in significant environmental harm, a penalty of $75,000 was imposed and $55,000 costs awarded. The defendant was a manufacturer of chemicals which a different company transported from Victoria to NSW. The chemicals were not packed in accordance with the Road and Rail Transport (Dangerous Goods) Act 1997 then in force. The truck was involved in a serious accident in NSW and the clean up took two days. There was potential for serious harm because of the different chemicals concerned which were toxic and dangerous if mixed. That matter was much more serious than this matter. 94In Environment Protection Authority v Patrick the offence was the failure to placard. A fine of $9,750 was imposed. The defendant had no prior convictions. The Defendant accepted this matter is more serious than Patrick. 95This matter is less serious than the circumstances in Moama, Embridge and MacDermid where actual and greater potential risk of serious harm arose to varying degrees. This matter is more serious than Patrick.

Environment Protection Authority v George Weston Foods Limited

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Judgment (32 paragraphs)

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Cases Cited (23)

Cited By (6)