Environment Protection Authority v Taylor

CITATION : Environment Protection Authority v Taylor [No. 3] [2001] NSWLEC 115 PROSECUTOR: Environment protection Authority PARTIES : DEFENDANT: Rodney Scott Taylor FILE NUMBER(S) : 50093 of 1998; 50094 of 1998 and 50095 of 1998 CORAM: Lloyd J KEY ISSUES: Prosecution :- carelessly disregard instructions on pesticide container - offence proven LEGISLATION CITED: Interpretation Act 1987 s 30(1) Pesticides Act 1978 s 21, s 23, s 25 and s 33 CASES CITED: DATES OF HEARING: 01/05/2001 EX TEMPORE JUDGMENT DATE : 05/01/2001

HIS HONOUR:

The defendant is charged with three offences against s 33 of the Pesticides Act 1978. That Act was repealed and replaced in 1999 but the effect of s 30(1) of the Interpretation Act 1987 is that the repeal of the 1978 Act does not affect anything done or any liability acquired or penalty incurred under that Act; and any legal proceeding or remedy may be instituted, continued or enforced as if that Act had not been repealed.
Section 33 of the Pesticides Act 1978 is as follows: 33 (1) Except to the extend that he is otherwise required by an order made under section 21 or, pursuant to a permit, he is otherwise authorised by section 25 , a person shall not, in preparing for use, using, keeping or disposing of: (a) a registered pesticide; or (b) a pesticide that contains a registered pesticide, wilfully or carelessly disregard any instruction on any label affixed to a container in which: (c) the pesticide is situated; (d) he acquired the pesticide; or (e) he knows or has reasonable cause to suspect the pesticide to have been, if there is a registered label for an approved container for the pesticide that contains that instruction. Penalty: 200 penalty units or, for an offence by corporation, 400 penalty units (2) It is a defence to a prosecution for a contravention of subsection (1) if the court is satisfied that the instruction disregarded was not directed to the avoidance of harm to the health or property of any person.
The first summons (No. 50093 of 1998) alleges that in on or about 4 June 1997 at No. 73 Tozer Street, West Kempsey the defendant committed an offence against s 33 of the Pesticides Act in that, not being a person required by an order under s 21 of the Act or a person authorised under s 25 of the Act, he did in using a registered pesticide carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a registered label for an approved container for the pesticide that contains that instruction. The particular instruction which is said to have been breached was "Do not allow contact with mattresses, bed clothes or clothing".
The second summons (No. 50094 of 1998) alleges a similar breach of the same provision but against a different instruction, namely, "Do not contaminate utensils or surfaces where food may be prepared or stored".
The third summons, (No. 50095 of 1998) is again in respect of the same provision of the Act but against a third instruction, namely, "Keep away from cooking and eating utensils and remove or cover all raw or processed foodstuffs before spraying".
The offence created by s 33 of the Act is one of strict liability.
It is necessary to briefly describe the relevant facts. On or about 4 June 1997 the defendant purchased from a store in Kempsey a container of the pesticide known as "FICAM W Insecticide". This was a pesticide registered under the Pesticides Act. The container was an approved container under the Act.
The container held a number of sealed sachets of a poison, the active constituent of which was bendiocarb. The defendant purchased the pesticide in order to treat a house which he owned and rented out.
The house was rented through a third party to one Rachael Marie Miles and she lived there with one Damian John Kennedy. There had been a complaint by those occupants of an infestation of cockroaches.
The container obtained by the defendant bore a label. Amongst other things the label said that the active constituent was bendiocarb and gave a series of instructions as to the use of the substance. Those instructions included the instructions particularised in each summons. The label was registered under the Act.
The defendant took the container with some spraying equipment to the house at No. 73 Tozer Street. He prepared a mixture of the pesticide in water using pesticide from two of the sachets. He then sprayed around the house.
The photographs attached to the affidavit of Mr B J Curtin on behalf of the prosecutor and a videotape which has been admitted into evidence show extensive deposits of a white powdery residue in many areas of the home. They illustrate in particular extensive contamination of the kitchen bench top; the cupboards in the kitchen; other areas of the house including children's toys, and shoes in a cupboard; walls; skirting boards; the kitchen stove, including the hot plates, the grill plate and in the oven; cooking utensils including a fry pan, a crockery cupboard and a metal rack above stored potatoes.
Ms Miles states in her affidavit that her son's lunch was sitting on a table in the lounge room and Mr Taylor sprayed right next to the lunch. She says that the defendant then went into her bedroom and that he sprayed all over her clothes on the floor. These clothes had just been washed. She says that the defendant opened the food cupboard and sprayed in there. The defendant opened the rest of the cupboards and sprayed all over the pots, pans and plates in that cupboard.
Ms Miles says when the defendant left the house she saw that there was a liquid all over her son's toys on the floor and in a built-in cupboard in his bedroom. She also saw liquid over the front of and in all three of the drawers of a wardrobe in the corner of her son's room. She also saw liquid on the edge of the shelves of her linen cupboard next to the bathroom. She made a note of the name of the pesticide on a piece of paper.
The other occupant of the house, Mr Kennedy, states in his affidavit that he saw the defendant open the cupboards in the kitchen and "spray on everything in them".
He also says that the defendant sprayed on the window sill which was just above a partly eaten plate of food on the coffee table without removing or covering the food in any way. He says he saw powder (from the sachets) on the kitchen bench. He saw that some of the clothes in the wardrobe in Ms Miles' son's room were wet. He could tell that they were wet because of the marks made by the liquid on the clothes. He also states that the liquid was in the linen cupboard and even the pantry. In oral evidence under cross-examination Mr Kennedy said that "it was all over the pots and pans".
The test of whether or not a person has carelessly disregarded any instruction on the label affixed to a container is an objective test. In this respect I note that in a record of interview with Mr Curtin the defendant admitted having read the instructions on the container.
During the course of the record of interview with Mr Curtin the container used by the defendant was produced by him. The defendant showed Mr Curtin the blue box with the words "FICAM W Insecticide" upon it. The defendant agreed that this was the chemical that he had used at No. 73 Tozer Street.
The defendant said during the record of interview that he read the instructions. He was asked in the interview the following question: "Did you also read any safety instructions on the label?". The defendant said: "Everything about safety on that."
Following the conclusion of the formal record of interview there was a further conversation between the interviewing officer, Mr Curtin, and the defendant in which the following occurred: [Mr Curtin said] : "Do you realise that the label on any pesticide is a legal document and therefore all the instructions must be followed?" Mr Taylor nodded his head up and down. [Mr Curtin] said: "There are a number of cautions on the box." The defendant said: "I read the box." [Mr Curtin] then took the blue box and read the instructions on the side panel out loud. "Do not spray directly on humans or animals. Keep away from cooking or eating utensils and remove or cover all raw or processed food stuffs before spraying. Do not contaminate utensils or surfaces where food may be prepared or stored. Do not use on vegetation for consumption by humans or animals. Do not spray where animals can eat. Do not use treated seed for animal or human consumption or feed to wild or domestic birds. Do not allow contact with mattresses, bed clothes or clothing. Do not contaminate ponds, waterways and drains with FICAM W or used containers. This product is toxic to fish. Clean up spillages promptly." According to Mr Curtin Mr Taylor nodded his head up and down while he read this out.
The evidence not only of Ms Miles and Mr Kennedy but also the photographs attached to Mr Curtin's affidavit and the videotape evidence show, in my opinion, a careless disregard of the instructions on the container.
I am also satisfied by the evidence that the label on the container was a registered label, that it was on an approved container for the pesticide "FICAM W Insecticide" which was itself a registered pesticide.
It is clear that the label contained particular instructions on how the pesticide should be used. There is clear evidence that the defendant used the pesticide and, as I have found, used it in a manner which was in careless disregard of those instructions.
I am also satisfied that the container was one which the defendant knew or had reasonable cause to suspect the pesticide to have been in beforehand. There is no evidence that the defendant had been required by an order under s 21 of the Pesticides Act to use the pesticide. There is no evidence of the defendant having been authorised under s 25, pursuant to a permit issued under s 23, to use the pesticide.
It is submitted on the defendant's behalf that some at least of what has happened was unavoidable, incidental contact. The photographic, video and other evidence shows, however, that the pesticide was distributed in a careless manner and much of what was described by the defendant's counsel as overspray was clearly avoidable.
It follows in my opinion that the offences have been proved in each instance. I stand over the hearing of the question of penalty to a date to be fixed. I grant the parties liberty to approach the Registrar to obtain such a hearing date. In the meantime the exhibits will remain with the Court. I hereby certify that the preceding 26 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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Judgment (6 paragraphs)

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