Land and Environment Court of New South Wales CITATION : Environment Protection Authority v Leafair Pty Ltd [2007] NSWLEC 228 PROSECUTOR Environment Protection Authority PARTIES : DEFENDANT Leafair Pty Ltd FILE NUMBER(S) : 50039 of 2005 CORAM: Talbot J KEY ISSUES: Environmental Offences :- Sentencing - use of pesticide - finding of pilot error preferred. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21A, s22 and s23; Pesticides Act 1999 s 10(1)(a), s109(1)(a),(c)(e),(g),(f). CASES CITED: Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722. DATES OF HEARING: 19/04/2007; 20/04/2007 DATE OF JUDGMENT: 26 April 2007 PROSECUTOR Mr D Jordan (Barrister) SOLICITOR Environment Protection Authority LEGAL REPRESENTATIVES: DEFENDANT Mr M Gray-Spencer SOLICITOR Riley Gray-Spencer Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 26 April 2007 50039 of 2005 Environment Protection Authority v Leafair Pty Ltd JUDGMENT 1 Talbot J: The defendant is charged that on 14 September 2004 it committed an offence against s 10(1) (a) of the Pesticides Act 1999 in that it used a pesticide in a manner that injured or was likely to injure another person. The defendant entered a plea of guilty to the charge on 2 February 2007. 2 At the time of the offence the company operated an aerial agricultural business under the name of Super Spread Aviation Australia operating out of Deniliquin Airport. It was the holder of an Aircraft (Pesticide Applicator) Licence issued by the Prosecutor on 14 July 1999. 3 One of the aircraft operated by the defendant was a Piper PA-25A9 Pawnee also known as a "Fatman". The aircraft had been acquired by purchase from a previous owner in September 2003. The company employed a pilot, Rohan John Williams who regularly flew the aircraft for the purpose of the aerial application of liquid chemicals to crops. 4 The Company has two directors and shareholders and was first registered in 1984. One of the directors, Peter James Wood has given evidence. The pilot Mr Williams has given evidence for the prosecution. 5 The parties have prepared a Statement of Agreed Facts and affidavits sworn by Mr Williams and Mr Wood have been read. 6 In a hearing before the Chief Judge on 13 November 2006, Mr Williams pleaded guilty to a separate charge under s 10 (1)(a) of the Pesticides Act. (Environment Protection Authority v Rohan John Williams [2006] NSWLEC 722). The Chief Judge found Mr Williams guilty as charged and imposed a fine in the sum of $7,000. Mr Williams was ordered to pay the Prosecutor's professional costs as agreed in the sum of $5,000. The Chief Judge found, in effect, that the offence committed by Mr Williams was as a consequence of the failure to properly maintain the aircraft. However, in these proceedings, the company defendant makes the primary submission that the offence occurred as a consequence of pilot error. It will be necessary therefore to revisit some of the evidence accepted by the Chief Judge particularly following the production of additional material evidence before me including comprehensive evidence from Mr Wood. 7 Mr Jordan, who appears for the Prosecutor, acknowledges that on the basis of the evidence in these proceedings, it is open for the Court to find that the offence occurred either as a result of pilot error or by reason of a failure to properly maintain the aircraft in a way that ensured that a hopper door did not leak. The Court must find either way in order to attribute the proper degree of culpability to the present defendant. The Facts 8 The company was engaged by a local property owner William Holden to spray his wheat crop east of Deniliquin for rust infestation. Mr Holden arranged for the chemicals Folicur and Hasten to be delivered to the defendant. 9 The spraying operation commenced on 12 September 2004. However on that day spraying could not be conducted on the south side of the Riverina Highway which runs through the property, due to unsuitable wind conditions. 10 On the morning of 14 September 2004, Mr Williams was instructed to continue the aerial spraying of the Holden property. After delaying for several hours until he decided that the weather was suitable for him to continue spraying, Mr Williams conducted a detailed inspection of the aircraft. He specifically included a leak test of the hopper dump door and did not detect any leaks. 11 After spraying a number of paddocks on the northern side of the highway and following a general change in wind direction, Mr Williams began spraying the paddock south of the highway, flying passes from south to north. After completing the south-north passes, Mr Williams sprayed a fifty metre buffer zone adjacent to the highway by executing three passes parallel to the highway. 12 Between approximately 2:30pm and 2:45pm on 14 September 2004 Raelene Maree Wilson was driving west along the highway from Finley to Deniliquin approximately 10 kilometres out of Deniliquin. She was driving at a speed of approximately 110 kilometres per hour. The windows of her car were closed and the air conditioning was not on. The air vents were open and facing up. The spraying operation concluded at about 3pm, according to Mr Williams. 13 Ms Wilson's description of what occurred is taken from the Statement of Agreed Facts and is not in dispute. As she approached the subject paddock from the east, Ms Wilson observed a white plane in the sky spraying over paddocks on her left side of the road. She saw the plane fly over the paddocks towards the road she was on and she saw it turn back towards the paddocks it had just sprayed. The turn occurred above the road in front of Ms Wilson. As the plane came towards Ms Wilson and before it turned around she could see a thick white mist coming from the underside of the plane. As she approached the place where she saw the plane turn, she experienced a bad taste in her mouth. She described the taste as a "chemical taste". A couple of seconds later, the front windscreen of the car was covered in a white liquid material. The liquid was so thick that she had to put the wipers and washers on to see where she was going. 14 Ms Wilson reported feeling unwell and experienced a disgusting chemical taste in her mouth. The unwell feeling developed into nausea, dizziness and a headache. She was examined by a doctor who did not find it necessary to offer any treatment. After seeing the doctor, Ms Wilson went home and rested. Tests taken from swaps of the lower windscreen, upper windscreen, right headlight and bonnet opening of Ms Wilson's car were examined. Analysis of the samples showed the presence of tebucanozale, the active ingredient in Folicur. 15 Samples of surface soil and samples of vegetation were taken from the relevant paddock on 16 September 2004. A subsequent analysis of those samples for the presence of tebucanozale showed higher concentrations of the chemical in the area under crop than were found in the area immediately adjacent to the road. The sampling points have not been identified relative to the position of the car in which Ms Wilson was travelling at the time the liquid was deposited on the windscreen. 16 Mr Williams commenced his employment with Leafair Pty Ltd in September 2003. In his affidavit Mr Williams seeks to discredit the reputation of the defendant in relation to the maintenance of aircraft and complained about the lack of proper training he received to operate their aircraft. 17 He made particular reference to a record which he calls the "Snags Book". He asserted that the book was used to record any minor maintenance problems instead of recording the details in the Maintenance Release Form kept in each aircraft as required by the Civil Aviation Safety Authority (CASA). In addition to disparaging remarks about the qualification of maintenance staff and the procedures of Leafair, he observed that when the Fatman aircraft was delivered to the defendant from the previous owner, it was fitted with "non-standard equipment that included an aperture at the base of the hopper (the chemical tank) that was designed for the application of super phosphate, a solid granulated fertilizer". He described the major problem with the Fatman as the leakage of chemicals from underneath the aircraft's hopper. He says that this was caused by the fact that when Super Spread acquired the Fatman in September 2003, its hopper was designed to carry solids. 18 He first noticed the dump door beneath the hopper leaking in September 2003 while conducting a herbicide application for a Super Spread client. In his affidavit he stated that the aircraft's hopper began to leak at the client's airstrip after being filled with a load of herbicide. He was able to stem the leak by tightening the clamps underneath the dump door. Mr Williams related more trouble with leakage from the bottom of the hopper of the Fatman when on a number of occasions he had to tighten the dump door clamps. On one such occasion he replaced the dump door seal. 19 In his opinion damage had occurred to an electrical lead around a stainless steel pipe adjacent to the flow metre housing on the aircraft and to the fabric covering the underside of the fuselage as a consequence of liquid leaking from the bottom of the hopper. 20 Mr Williams gave evidence that when he became aware that leakage was a problem with the hopper of the Fatman, he would daily half-fill the hopper with water and search for leaks. However, he did not regard this process as a reliable indicator of whether the hopper would leak during the day as once the hopper is full of pesticide and subject to different kinds of load factor, it is more likely to leak than when it is only half-full of water and the aircraft and the aircraft is resting on the tarmac. 21 He only ever made verbal requests for maintenance. The changing of the foam seal and tightening of the hopper door were only minor repairs that were not recorded. He further says that he regularly checked, serviced and replaced the spray nozzles fitted to the aircraft. 22 Other alleged problems have been identified by Mr Williams and although not directly related to the events on 14 September 2004, he relies on them collectively to express the belief that financial pressure was placed on the maintenance department of the company to try to keep the aircraft in the air without spending too much money. Mr Williams also identifies incidents that he considers to be adverse but related to other aircraft in what appears to be a concerted attempt to discredit the defendant. 23 The Affidavit sworn by Mr Wood is in main part an answer to the evidence of Mr Williams. When Mr Williams commenced work with the defendant, his resume stated he had been trained by a reputable organisation and flown 504 hours. He was indoctrinated to the Fatman aircraft and checked out over several hours by the directors of the company. The company had two permanent, fully qualified, Licenced Aircraft Maintenance Engineers and one was employed part time. Owing to drought conditions, by the end of August 2004, the company operated with a skeleton crew and alternative arrangements were made for maintenance of the company's aircraft. 24 Mr Wood justifies the use of a Snags book to record minor problems and to alert the engineers to what might be required at the next service. The Snags book is open for any employee to make an entry. The engineers complained that no information was provided to them by means of the Snags book and Mr Wood says over a two year period no entry was made in it to his knowledge. It was not intended to circumvent the use of the Maintenance Release Form required by CASA. 25 Allegations by Mr Williams that the dump door installed in the Fatman was not a standard fitting is denied by Mr Wood. There is evidence it was a properly designed door, manufactured as a multi-purpose door modified to meet Australian Standards by the previous owner. It had a foam seal. Small leaks occurred from time to time. In his experience they amounted to no more than drips rectified either by replacement of the foam seal, or by tightening the door clamps. If leaks occurred as a consequence of the lodgement of foreign material, this would be rectified immediately. 26 Mr Wood personally inspected the aircraft when notified of the incident on 15 September 2004 and instructed the Chief Engineer to examine the aircraft. The tests made revealed no problem with leaks. The exterior of the aircraft showed no sign of damage from leaking chemicals apart from the accumulation of dust and grime over the years and oil and fuel stains on the fuselage. The only explanation Mr Wood could offer for the incident that occurred on 14 September 2004 is that the pilot did not shut off the spray nozzles until he was almost over to the north side of the road. In his opinion a minor leak would not have covered the windscreen of Ms Wilson's car. What she described is what would have happened to her windshield with the aircraft in full spray configuration. 27 Contrary to the suggestion there was a leak of any consequence is the fact that the aircraft did not run out of chemical before the spray job was complete shortly after the incident occurred. Moreover, in his view Mr Wood says it is not possible that a leaking nozzle could have caused the amount of chemical experienced by Ms Wilson to leak as the "suck back" would have stopped any leaking nozzle before it reached the road if the shut off had of been made 50 m before the edge of the crop. The output from one nozzle would not have delivered enough volume to obliterate the windscreen. If the pilot had turned the spray valve off at the south end of the buffer, then Mr Wood says in his opinion the whole incident would not have happened. 28 At the hearing before the Chief Judge, the affidavit and oral evidence from Mr Wood was not available. I have had the opportunity of weighing the evidence of the two witnesses, one against the other. I have also observed them in the witness box. I found Mr Wood an impressive witness who answered questions honestly and believed in what he said was, in his opinion, the cause of the offence. His response to the allegations of neglect and omission made by Mr Williams is both logical and consistent with reasonable expectations of standards to be applied in the operation of an aerial spraying business. 29 Mr Williams on the other hand, embarked upon a campaign of vilification which is inconsistent with the previous good relationship which existed between him, his employer and the other employees. It is as if Mr Williams embarked upon a reconstruction of events in order to overcome his own mistakes. His attempt to upgrade the level of the potential for leaks from the aircraft without direct observation of a problem to that extent, has not been justified. He agreed that he had personally replaced the foam seal and tightened the bolts of the hopper door. There is no suggestion of adverse consequences following that remediation work. 30 I am satisfied that Mr Wood is telling the truth and that having regard to the amount of chemical dumped on Ms Wilson's vehicle, that it is unlikely there was any extraneous leak from the aircraft of sufficient magnitude to produce that result. Tests show that the concentration of chemical in the soil and vegetation within the buffer zone was negligible. If the aircraft had been consistently leaking throughout the job, I would expect those results to show a higher level of chemical present. Low, even negligible, amounts of chemical in the area immediately adjacent to the road point to the probability of a one off occurrence that unfortunately coincided with Ms Wilson driving along the road. 31 Mr Wood effectively and plausibly explained or rationalised each of the accusatory observations and theories posited by Mr Williams. Even if they were true, it is unlikely that they would have made a major contribution to the result that occurred on 14 September 2004. 32 Although Mr Williams attempted to explain his evidence on the basis of a true belief voluntarily given and that his own reputation had already been adversely affected by the decision of the Chief Judge and he therefore had nothing to gain from his protestations in this case, it must be taken in the context that his affidavit evidence from the first proceedings was read in this case drafted entirely in his own interest without any real apprehension of contradiction from his employer who was not expected to give evidence at the first trial. 33 I find therefore that it is more likely than not that the offence occurred as consequence of pilot error rather than a failure to properly maintain the aircraft. I appreciate that this finding is in some respects contrary to that of the Chief Judge. However, as already explained, I have the benefit of additional evidence and the opportunity to assess the two witnesses who gave competing evidence in the witness box. Although my finding is favourable to the present defendant, nevertheless the charge involves a strict liability offence to which the defendant has in my opinion quite rightly, pleaded guilty. 34 The degree of culpability of the defendant is to be assessed on the basis that it is responsible for the actions of its employees (including pilots) their training, and supervision. If fault is to be found in the sense of neglect, it is the area of testing and training of the pilots and the lack of regular supervision and observation of his actions. The company relied upon his experience in previous employment and took only a limited opportunity to familiarise him with the aircraft in the first instance and thereafter to follow up by sufficient observation of his practices. This did occur from time to time as the evidence of Mr Wood shows. There is no history of any earlier incidents except out of the mouth of Mr Williams, all of which are denied by Mr Wood. Conclusion 35 I find the offence proved. The liability of the defendant is strict. It has pleaded guilty to the essential elements of the offence. 36 Section 109 of the Pesticides Act requires the Court to take into account the various matters specified therein when imposing a penalty. Section 21A, s22 and s 23 of the Crimes (Sentencing Procedure) Act 1999 provide for further criteria to be taken into account. No submission has been made that s 10 of the Crimes (Sentencing Procedure) Act should be applied. 37 Until such time as the evidence of the reporting officer of the Prosecutor together with the affidavit by Mr Williams became available, the defendant, on the advice of its solicitor, did not enter a plea. Up to that time, the full circumstances surrounding the incident were unclear. The inquiries made on behalf of the defendant, including the pilot, had not shown a definite cause for the dumping on Ms Wilson's car. Once that information became available and Mr Williams entered a plea of guilty, the company promptly arranged for its solicitor to enter a plea of guilty. 38 In the circumstances I am prepared to regard the plea of guilty as having been entered promptly for the purpose of assessing any discount which should otherwise be imposed upon the defendant. The relevant provisions of s 109 of the Pesticides Act are as follows: 109 Matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the injury, damage or harm caused or likely to be caused by the commission of the offence, (b) the practical measures that may be taken to prevent, control, abate or mitigate any such injury, damage or harm, (c) the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence, (d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee, (f) in any case where the defendant is a corporation, the type of corporation concerned (eg whether it is a sole trader or a family-owned business), (g) whether the person who committed the offence complied with any relevant pesticide code of practice. 39 The Court is required under s 109(1)(a) to take into consideration the extent of the injury caused or likely to be caused to Ms Wilson. Fortunately the effect upon her health was temporary and although inconvenient and troubling to her it was minor, with no long-term consequences. 40 Apart from the prospect of constantly checking and reiterating correct procedure and practices, the practical measures that could have been taken to prevent, control or abate or mitigate the injury, were limited. The aircraft is a single seater aircraft and as the facts show, any aerial observation, familiarisation, or training procedures, were, of necessity, carried out from or on the ground. Nevertheless, I have already made some observation in this respect and concluded that it was open to the company to have expanded or amplified its procedures in this respect. 41 There is no corroborated evidence which leads the Court to conclude that the aircraft was not maintained to at least a satisfactory level. Even Mr Williams has not been able to create a direct link between the event that occurred on the 14 September 2004 and a failure to maintain the aircraft in a proper manner. His evidence in this context is based solely on conjecture. 42 Section 109 (1)(c) requires the Court to take into consideration the extent to which the person who committed the offence could reasonably have foreseen the injury, damage or harm caused or likely to be caused by the commission of the offence. The occurrence was not an unlikely event and clearly foreseeable as a direct and natural consequence of aerial spraying in the vicinity of a public road. 43 Having regard to my findings as to the extent to which pilot error played a part, that is not a matter over which the owner of the aircraft had direct control, except to the extent of constantly reiterating the need for the operation to be carried out in a safe manner. 44 The Prosecutor does not raise any issue in relation to s 109 (1)(e) or (g). It is appropriate to note however, that the company is effectively a small business carried on behalf of two individual shareholders essentially operating as sole traders in the nature of a family-owned business, contemplated by s109 (1)(f). The company has ceased to trade except as a training organisation. It continues to own and hire aircraft and is engaged in the buying and selling of aeroplanes. However, on 1 July 2006 the agricultural operational rights, firebombing contracts, the right to use the name Super Spread Aviation, the premises at Deniliquin, the ground equipment and two aircraft were sold to another company, so that the likelihood of this company re-offending in the same way is remote. 45 The Prosecutor does not make any submission that any of the aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act apply. The Chief Judge was not prepared to find in the case of Mr Williams that the offence was committed without regard to the public safety and I agree that the company did not act in that way. That factor therefore does not arise in the present case. 46 In regard to the mitigating factors enlivened by the provisions of s 21A(3) I accept that the injury to Ms Wilson was not substantial. The company does not have any record of previous convictions and apart from the attempted slurs by Mr Williams, the evidence shows that it has been held in high regard by other operators in the same industry. For example the Chief Pilot/Chief Flying Instructor at Sydney Flight Training Centre speaks highly of Mr Peter Wood and the Victorian Department of Sustainability and Environment Manager, states that the company attained a 96% performance rating across all aspects of services provided to the State Aircraft Unit. That is above average for similar services provided by other operators. 47 It is clear to me from observing Mr Wood in the witness box and generally, that those associated with the corporate entity are remorseful and have suffered substantial embarrassment as a consequence of the offence. Mr Wood was concerned that any person should suffer an adverse effect no matter to what degree, from the operations of the company. He expressed what I consider to be sincere heart felt concern at the impact upon Ms Wilson albeit slight and short term. 48 I have already dealt with the entry of the plea of guilty at an appropriate time and there is no dispute between the parties that the defendant has provided assistance to the investigating officers. In particular, Mr Wood who participated in a full recorded interview on 28 October 2004. 49 The defendant has been vindicated by the tests taken subsequent to 14 September 2004 where no leaks or trailing jets were found. It is open therefore for the Court to be confident that the occurrence was not as a consequence of a leak from the aircraft. Other human intervention was required. The only other person capable of human intervention or omission was the pilot. Even if there was a leak, it would not have covered the windscreen in the way that Ms Wilson described. It is relevant that it was not only the windscreen of the car that was impacted. 50 There are obviously economic considerations that need to be taken into account in relation to the extent to which an operator is required to go firstly in respect to the maintenance of an aircraft and secondly, in respect of the supervision and control of highly trained operators in a specialised profession. There is no evidence before me that would justify a finding that the company was parsimonious in this respect. 51 The company has agreed to pay the Prosecutor's costs in the amount agreed of $13,500. That in itself is a penalty incommensurate with the nature of the offence and its consequences in the context of the maximum penalty applicable to a corporation of $120,000. The company is essentially a small business operated by individuals. It is worth noting that the maximum fine for an individual offender is $60,000. 52 Having regard to the whole of the circumstances and in the absence of any suggestion to the contrary and in the light of the plea of guilty, I find the offence proved. The defendant is convicted of the charge in the Summons. The amount of the penalty will reflect a consideration of all of the matters outlined above. It is appropriate that a conviction be recorded and a penalty imposed as a general deterrent to others in order to remind operators of aircraft in particular that the expectations in terms of safety are high. It is appropriate for there to be a nominal penalty. Accordingly, the defendant company is ordered to pay a fine in the sum of $1,000. Orders 1. The Offence as charged is proved. 2. The defendant is guilty of the offence as charged. 3. The defendant is ordered to pay a fine in the sum of $1,000. 4. The defendant is ordered to pay the Prosecutor's costs in the agreed sum of $13,500. 5. The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.