Question (ii)(a): Is the Test of Recklessness Objective or Subjective?
47 As set out above, the defence in s8(2)(b) does not extend to a discharge of oil in consequence of damage to a ship or equipment, if the damage is "intentional damage". That term is defined in s8(3), also set out above, to encompass circumstances in which the master or owner of the ship "acted recklessly". The Appellant contended before her Honour and in this Court that the test of recklessness was an objective one.
48 As noted above, by force of s7 of the Act, the word "recklessly" has the same meaning as it has in Regulation 11(b)(ii) of Annex I to the 1973 Convention.
49 The actual question asked in (2)(a) is concerned with whether a subjective or objective test applies in the particular circumstances identified in the question: "in order to determine whether a person acted 'recklessly' for the purposes of s8(3)(b) of the Marine Pollution Act". However, the word "recklessly" does not appear on its own. It appears as part of the phrase "recklessly and with knowledge that damage would probably result".
50 As formulated, the question is concerned with only one part of a two-fold condition, both parts of which have to exist before a defence of "escape in consequence of damage" is unavailable. Accordingly, irrespective of whether the conduct of the owner and/or master was "reckless", the defence would still be made out if the master and/or owner established that he or she and/or it did not act "with knowledge that damage would probably result". Nevertheless, for whatever practical significance it may have, the question posed focuses only on the word "recklessly".
51 In Metropolitan Police Commissioner v Caldwell [1982] AC 341, the authority primarily relied on by the Appellant, Lord Diplock described the classification of a test for "recklessness" in a statutory formulation in terms of "subjective" or "objective", as an "obsessive question" (352G), as a "current vogue for classifying all tests of legal liability" (353E) and as a manifestation of "current legal jargon" (354F). His Lordship noted judicial statements that tests of legal liability "are not easily assignable to one of those categories rather than the other" (353F) and concluded at 354: "Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective". In the other authority relied upon, R v Lawrence [1982] AC 510 at 526E, Lord Diplock described the distinction as "simplistic".
52 To similar effect is the comment by Gleeson CJ and Handley JA in SS Pharmaceutical Co Ltd v Qantas Airways Ltd [1991] 1 Lloyd's Rep 288 at 290. Their Honours referred to a distinction between an "objective" and "subjective" test for knowledge in Article 25 of the Warsaw Convention and added "whatever exactly that might mean".
53 The submissions in this Court adapted some of the terminology of Lord Diplock in Caldwell supra at 354. The Appellant submitted that "recklessness" in s8(3)(b) should be determined by asking "what a prudent person would consider might happen". In view of the imprecision of the words "subjective" and "objective", that is the question which ought be answered in the present case.
54 As indicated above, in submissions before her Honour, and in this Court, the Appellant relied on some observations of Lord Diplock in Caldwell supra esp at 352-354 and Lawrence supra esp at 526-527 and by Lord Hailsham of St Marylebone LC in the latter at 520-521. Lord Diplock adopted an objective test with respect to the use of the word "reckless" in the context of the two statutory provisions under consideration in the respective cases, by giving consideration to the mind of an "ordinary prudent individual" (eg Caldwell at 354B-C and Lawrence at 526F, see also Lord Hailsham at 520H-521A).
55 This approach of Lord Diplock has been the subject of considerable criticism and has not generally been adopted in Australia (c/f R v Tolmie (1995) 37 NSWLR 660 at 670-672 per Kirby P). More recent English authorities have refused to apply the approach to other statutory provisions invoking a test of recklessness. (A range of materials is collected in Clarkson and Keating Criminal Law: Texts and Materials (4th ed 1998) at 154-184; see also R v Reid [1992] 1 WLR 793 at 805H, 817H).
56 The Lord Chancellor has recently traced the divergence and subsequent realignment of Australian and English jurisprudence on the issue of intention and recklessness in "The Mental Element in Crime: A Comparative Analysis of Australian and English Law" a speech by the Lord Chancellor of the United Kingdom, Lord Irvine of Lairg, delivered at the University of Sydney's Faculty of Law on 6 September 2000.
57 On the subject of Caldwell his Lordship described the decision in the following way at p6:
"The ruling was a radical departure from the traditional understanding of recklessness."
58 His Lordship went on to note, at 7:
"At the time, Caldwell was criticised quite forcefully by Australian academic lawyers, whereas the Australian courts seem to have regarded it as going only to the interpretation of a specific statute, and so of no general significance.
The High Court has ignored Caldwell almost entirely. Exceptionally McHugh J's judgment in Royall v R [(1991) 172 CLR 378 at 455] mentions Caldwell when considering the mens rea element of "reckless indifference to death" contained in s18 of the Crimes Act 1900 (NSW). However, like the rest of the High Court, he went on to reject an objective interpretation, ruling that the section requires foresight of the probability or likelihood of death."
59 His Lordship went on to identify cases in which the word "reckless" may have been used in an objective sense but concluded at p7:
"Despite these divergent authorities, however, it is right to say that by the time of Caldwell the subjective meaning of recklessness was predominant in Australia. It had already been endorsed in a series of cases at State level and blessed by the High Court in such cases as Vallance v R [(1961) 108 CLR 56 at 64] and Pemble v R [(1971) 124 CLR 107 at 119]. Caldwell elicited no change in this position."
60 His Lordship concluded at p8:
"If Caldwell failed to take hold within the Commonwealth, its roots have proved shallow even in England. Although the decision exercised considerable influence during the 1980s, its importance has diminished. For example, it no longer governs the English law of manslaughter, rape, or assault. In effect, its application is now restricted to the offence in Caldwell itself (criminal damage), and to a few other statutory offences. Professor Ashworth has observed rightly, that 'the Caldwell definition is now of little practical significance'. Subjective recklessness of the variety found in Cunningham and Royall now predominates and, once more, English law is aligned with Australian."
61 The fate of Lord Diplock's reasoning, as summarised by the Lord Chancellor in these passages, indicates that the Appellant's reliance upon it, as such, was not auspicious. In the normal course, an Australian court will approach the construction of terminology of "recklessness" in a criminal statute on the basis that Parliament intended a subjective test to be applied. (See eg the authorities collected in Fisse "Howard's Criminal Law" (5th ed) 1990 pp486-487 esp at fn14; Gillies Criminal Law (4th ed) 1997 at 59, 63-65, 66-67). Nevertheless each statutory formulation must be construed in its own context, having regard to the purpose of the particular legislative scheme. No different considerations arise in the process of construing a treaty.
62 In the present case, the relevant intention of Parliament is to implement Australia's treaty obligations. The word "reckless" is found in Regulation 11 of Annex I of the Convention and its meaning in that Convention is what the Parliament of New South Wales intended to adopt. As noted above, pursuant to Article 31 of the Vienna Convention, the word "recklessly" in Regulation 11(b)(ii) must be given its ordinary meaning in its context and in the light of its object and purpose.
63 The most important textual indicator with respect to the proper construction of the word "recklessly" is that it is combined with an express qualification that it be accompanied by "knowledge that damage would probably result", the "damage" here referred to being to the ship or its equipment, not the damage caused by any discharge of oil. This aspect of the context points, in my opinion, to the conclusion that actual advertence to the risk of damage by the owner or master involved in the incident is required. It is not material to inquire what a prudent person would consider might happen.
64 Assistance can be obtained from the case law on Article 25 of the Warsaw Convention concerning International Carriage by Air, as amended by the Hague Protocol of 1955. This Article provides:
"The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result …"
65 As can be seen, the clause employs the same terminology as Regulation 11 of the 1973 Convention with which these proceedings are concerned, and may very well have been the source of the terminology for the drafters of the 1973 Convention.
66 At a time when Lord Diplock's approach to the construction of the word "recklessly" in criminal statutes was more generally accepted in England, the Court of Appeal had to determine the proper meaning of the composite phrase in Article 25 of the Warsaw-Hague text in Goldman v Thai Airways International Ltd [1983] 1 WLR 1186. Eveleigh LJ referred to the observations of Lord Diplock in Caldwell and Lawrence (and to the supporting observations of Lord Hailsham of St Marylebone LC in Lawrence at 520), and said at 1194:
"One cannot therefore decide whether or not an act or omission is done recklessly without considering the nature of the risk involved. In the present case the omission relied upon was the failure to order seat belts to be fastened. The risk with which we are concerned, therefore, is the risk of injury to the passenger whose belt should have been fastened. If the article had stopped at the word 'recklessly', I would have been prepared to say that, on the judge's findings, the plaintiff had proved his case. … However, the doing of the act or omission is not only qualified by the adverb 'recklessly,' but also by the adverbial phrase, 'with knowledge that damage would probably result.' If the pilot did not know that damage would probably result from his omission, I cannot see that we are entitled to attribute to him knowledge which another pilot might have possessed or which he himself should have possessed."
67 It is not clear that his Lordship was intending to attribute a subjective meaning to the element "recklessly" alone ie in isolation from the subsequent reference to knowledge. However, that is suggested at 1196 when his Lordship said:
"For the pilot's omission to amount to recklessness, it is in my opinion necessary to show that he knew that prudent flying required him to illuminate the seat belt sign …"
68 Furthermore at p1199, his Lordship said:
"As I understand article 25, it is not sufficient to show that he deliberately broke a regulation, even one which is designed for safety, unless it is also shown that he had knowledge that injury would probably result. While it is not necessary for my decision in this case, I would go further and say that it is in relation to that knowledge (and not to regulations themselves) that his conduct is to be judged in order to determine whether or not it was reckless."
69 Purchas LJ said at 1202:
"I agree that the true interpretation of article 25 when it is read as a whole involves the proof of actual knowledge in the mind of the pilot at the moment at which the omission occurs, that the omission is taking place and that it does not involve probable damage of the sort contemplated in the article."
70 Although not adopting the terminology of "subjective" and "objective" tests with respect to recklessness, terminology which had at that stage been criticised in the House of Lords, the reasoning and conclusion of the court in Goldman v Thai Airways supports a subjective test for the combined clause "recklessly and with knowledge that damage would probably result".
71 This was how the decision was interpreted by Rogers CJ Comm D in SS Pharmaceutical Co Ltd v Qantas Airways Ltd (1988) 22 NSWLR 734 at 749-750. Rogers CJ Comm D noted that a divergence of approach had appeared with respect to this provision of the Warsaw Convention. His Honour referred to decisions of the French courts which applied an objective test, contrasting them with the subjective test applied in Belgium and Switzerland. Such divergence continues to exist (see Shawcross & Beaumont: Air Law (4th ed 1977-) Vol 1 at par 447).
72 In the appeal to this Court (SS Pharmaceutical Pty Ltd v Qantas Airways Limited [1991] 1 Lloyd's Rep 288), both the majority, Gleeson CJ and Handley JA, and the dissentient on the facts, Kirby P, adopted the reasoning in Goldman v Thai Airways. Gleeson CJ and Handley JA at 291 referred with approval to the passage from the judgment of Purchas LJ I have quoted above. The issue now before the Court - whether the test is objective or subjective - was raised in SS Pharmaceutical but not pressed at the hearing. (See 290 and 302).
73 In SS Pharmaceutical, Gleeson CJ and Handley JA referred to the submissions on Article 25 of the Warsaw Convention that were pressed and said, at 291:
"The submission was, in essence that what the respondent had to prove in the present case was both recklessness and actual subjective knowledge of the kind referred to in art. 25. That is, without doubt, a stringent requirement. It was described in argument as 'a standard of highly reprehensible conduct'. We would not disagree with that, provided the more colourful description is not permitted to replace the language of the article as the test to be applied. Reference was also made to the juxtaposition in art. 25 of the concept of intent to cause damage and the concept which is of present relevance, the latter being said to take some of its colour from its relationship with the former. Again, so much may be accepted, provided the argument is not pressed beyond its proper limits. Plainly the second concept is different from the first, otherwise its presence would add nothing to the content of the article. Nevertheless it helps to reinforce the valid points that the state of mind involved goes beyond mere carelessness and that actual, as distinct from merely imputed, knowledge must be shown."
74 The English Court of Appeal has subsequently affirmed the reasoning in Goldman v Thai Airways and SS Pharmaceutical, in Gurtner v Beaton [1993] 2 Lloyd's Rep 369 at 386-387 and Nugent v Michael Goss Aviation Ltd (Court of Appeal Civil Division, 15 April 2000, unreported). In Gurtner at 386 Neill LJ referred to Goldman v Thai Airways as finding that the test was "subjective". In Nugent at p4 Auld LJ also interpreted Goldman v Thai Airways as "holding that the test of recklessness was subjective" and, at pp4 and 10, approved the passage from Purchas LJ which I have quote above.
75 This line of authority suggests that there is usually no point in treating separately the two elements of the formulation, as is done in the question posed for this Court. As Auld LJ said in Nugent:
"As a matter of proof the two will often stand or fall together, as happened in Goldman; see in particular per Eveleigh LJ at 1199F and 1200E and in SS Pharmaceutical per Gleeson CJ and Handley JA at 293. As so often, practical considerations of what a tribunal is prepared to infer as to a defendant's state of mind may be more determinative than fine matters of principle of what one legal concept adds to another."
76 It may have been practical considerations of this character that Kirby P had in mind when he said in SS Pharmaceutical at 302 that the phrase "recklessly and with knowledge that damage would probably result" involved "one composite concept". Pearlman J correctly proceeded to assess the facts of the case which went to awareness of risk and awareness of probability of damage together. Her Honour was correct to do so in circumstances, which will almost invariably be the case, where there is no practical differentiation between facts going to one and facts going to another.
77 This Court is asked to differentiate the issues. Although it is possible to do this as a matter of analysis, it is unlikely that any practical consequence will follow. Nevertheless, question (ii)(a) should be answered as follows:
"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."