A breach of the duty of care is not an offence of strict liability, (ie where liability is imposed even where there is no negligence).

If the producer has taken all reasonable measures to ensure that the duty is complied with, they are not guilty of an offence even if the waste ends up being illegally tipped. However, the producer may not find it easy to satisfy the investigating officer that all reasonable steps have been taken in such a case.

The problem lies in ascertaining exactly what the reasonable measures are in each circumstance. Factors to be taken into account include:

  • the nature of the waste (eg solid or liquid)

  • whether the waste is hazardous and, if so, the type of hazard

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