A head contractor is not criminally liable under s 16(1) of the Clean Waters Act 1970 (NSW) for pollution caused by an employee of a sub-subcontractor where the head contractor did not exercise detailed control over the manner of the work, was not in possession of the pollutant on premises it controlled, and engaged competent contractors with specific expertise. The non-delegable duty doctrine does not extend to impose criminal liability in the absence of special dependence or vulnerability on the part of the person exposed to the risk. Where a defendant's criminal liability is said to arise from contractual obligations of control and supervision, but those obligations are absent from the contract, no criminal liability arises.
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