Cowie v. Perth Demolition Company Pty Ltd. - (01 May 2020)

A company and its sole director are vicariously criminally liable for the acts of one of company's employees, if the discharge or abandonment occurs as a result of positive act

Environment

Present appeal principally concerns whether a company and its sole director are vicariously criminally liable for the acts of one of the company's employees. In broad terms, one of the first Respondent's employees on three separate occasions on the same date illegally dumped building rubble and kept the cash he had been given for the tip fees for its legal disposal.

The first Respondent was charged with three offences of discharging or abandoning the building rubble in breach of the Environmental Protection Act, 1986 (WA) (Act) on the basis that it was vicariously liable for the acts of its employee. In the alternative, the first respondent was alleged to have caused or allowed the building rubble to be discharged or abandoned. The second Respondent's liability was said to arise as a consequence of him being the sole director of the first respondent. Following a trial in the Magistrates Court, the Respondents were acquitted of all charges. The Appellant seeks leave to appeal against the acquittals.

The offence created by Section 49A(3) of the Act is a criminal offence for which a principal can be vicariously liable for the acts of its employees. The purpose of the Act is, to protect the environment of Western Australia in accordance with the principles outlined in the Act. The purpose of Section 49A of the Act is to ensure that the discharge or abandonment of waste only occurs at authorised places and does not allow the dumping of waste at other places to which the public has access. In order to ensure that the statutory purpose of this section is fulfilled, it is necessary that principals be liable for the acts of their employees. In many circumstances, the person who carries out the discharge or abandonment of the waste will not be the person that created the waste. In many cases, employees will be asked to carry out this work on behalf of their employer. The Act is regulatory legislation which is generally considered to give rise to criminal vicarious liability.

The learned magistrate misdirected himself as to the applicable legal test for the determination of vicarious liability. In disposing of the building waste, he was doing precisely what he had been instructed to do by the first Respondent. While the driver's acts were an improper method of undertaking his responsibilities, they were within the scope of what he was employed to do. For this reason, the first Respondent is vicariously liable for the acts of its driver. The learned magistrate erred in fact and law in failing to find that the first respondent was vicariously criminally liable for the acts of the driver.

In Coffey LPM Pty Ltd v Contaminated Sites Committee, Hall J considered the meaning of the words 'allow' and 'cause' in relation to Section 49(3) of the Act. Relevantly, Hall J held that, the term 'allow' has at least as wide a meaning as 'permit'. A person permits something, if they have knowledge of it and the authority or power to prevent it occurring. The term 'cause' unlike the term 'allow' does not suggest any requirement of knowledge. It is not necessary to show that an alleged offender intended to cause the pollution or was negligent in failing to prevent the pollution before a court will find that a person caused the pollution. It is sufficient that the pollution arises from some positive act of the defendant.

If the discharge or abandonment occurs as a result of this positive act, even if it occurs as a consequence of a matter that, the Respondents could not have foreseen, the Respondents will be held to have caused the position. The proper question for the court is not what caused the pollution but whether the acts of the respondents caused the pollution.

In this case, the first respondent (through the second respondent) gave instructions to the driver to dispose of the building rubble. The illegal dumping of the waste arose from these instructions. Leave should be granted to appeal and the appeal should be allowed. The appropriate disposition would be to remit the matter to the magistrate to consider first, whether there are any defences open to the second Respondent and second, for the first respondent to be sentenced.

Tags : ILLEGAL DUMPING VICARIOUS LIABILITY ACQUITTAL