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Colbert manslaughter verdict a delegation warning

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The Colbert Transport case underlines that vehicle maintenance responsibility stays with company owners, managers and directors despite delegation of such work to mechanics, Holding Redlich partner and transpo5473646-3x2-340x227rt lawyer Danella Wilmshurst warns.

Peter Colbert, the director of Adelaide-based Colbert Transport, was found guilty of manslaughter following driver Robert Brimson’s death in a crash due to faulty brakes.

In response to evidence in the South Australian Supreme Court that he had been warned repeatedly to fix his trucks, Colbert said he relied on the company mechanic for vehicle maintenance.

“The importance of company directors taking responsibility for the safety of company vehicles and implementing a regular and effective maintenance program was made tragically apparent from the circumstances of this case,” Wilmshurst says in a commentary on the case.

“It is also a decision that confirms that it is not an adequate response for a director of a company to delegate full responsibility for vehicle safety to a mechanic or others with a responsibility for vehicle maintenance.”

Despite the sometimes broad and tough provisions of national regulations and the push to expand Chain Of Responsibility (COR) to maintenance, these were now a feature of the case, Wilmshurst notes.

“The prosecution of the company director in this case was brought under the South Australian criminal statute and was not under the Heavy Vehicle National Law’s (HVNL’s), COR regime,” she writes.

“Although the COR regime carries heavy penalties for proven severe and critical breaches of road transport safety laws, it does not include its own offences for manslaughter or endangering life, and does not presently extend COR requirements to matters of roadworthiness and vehicle maintenance.”

Loading practices case puts approach in spotlight

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Poor standards led to the death of an innocent motorist, but the loader received a small fine while the truck driver delivering the freight was charged with manslaughter

A truck driver was put through the legal wringer after freight fell from a rig he was driving and killed a woman, while the company responsible for loading the vehicle received a small fine.  New South Wales Police threw the book at driver Basil White after a steel girder slid off his truck and collided with the passing vehicle of Leonie Darling in 2011.

Darling was travelling on the Mitchell Highway near Bathurst when the incident occurred and died as a result.

White, who was driving for Robbie Walker Transport when the accident happened, was charged with dangerous driving occasioning death, driving in a dangerous manner and manslaughter by criminal negligence.

He was found not guilty and cleared of all charges in April this year.

KGB Protective Coatings was the party tasked with loading the truck.


In a separate court case, the Roads and Maritime Services (RMS) prosecuted it for a load restraint breach under chain of responsibility (COR).

During proceedings, it was revealed KGB used untrained staff to load the truck.

“The KGB staff who placed the load onto the vehicle were under the supervision of KGB,” justice Peter Garling says.

“KGB staff were not trained in load restraint.

“KGB staff did not measure the dimension of the load.”

He found the company’s actions caused Darling’s death and KGB accepted no responsibility for its actions, despite pleading guilty to a load restraint offence.

“If the load had been properly secured, such that it was unlikely to fall, as the legislation required, then Ms Darling’s death would not have happened,” Garling says.

“I can only conclude that there was a failure by the company to address its legal obligations with respect to load restraint.”

Garling convicted KGB and fined it $18,150, along with ordering the firm to pay $25,000 to the RMS in court costs.

It faced a maximum fine of $27,500.

“Except for the plea of guilty to the offences, there is no evidence that the company has accepted responsibility for its actions, nor has the company, other than by its plea, acknowledged any injury, loss or damage caused by its actions, nor is there any evidence that it has made any reparation for such injury, loss or damage as the statute requires,” he says.

“I am not persuaded on the balance of probabilities that the mere entry of a plea indicates any remorse on the part of the company.”

KGB used softwood timber as dunnage to support the load but the wood was defective and compressed during transit, causing the girder to slide off the truck.

Robbie Walker Transport supplied the wood but did not know it was defective.

The RMS prosecuted the company and its owner, Robert John Walker, for a load restraint breach under COR.

Both pleaded guilty.

The company was convicted and fined $16,500, while Walker himself was convicted and fined $900.

They were ordered to pay the RMS $20,000 in court costs.

The court was told the now-retired Walker had been involved in the transport industry since 1970 and that prior to the 2011 incident had never breached road safety or load restraint requirements.

“In his affidavit Mr Walker expresses deep remorse for the offence, and heartfelt sympathy for the family of the unfortunate Ms Darling,” justice Peter Hidden, who sentenced Walker, says.

“He adds that he accepts full responsibility for the incident, and is ‘personally very affected’ by it.

“Indeed, this tragedy was a material factor in his decision to terminate his involvement in the transport industry.”negligent-loading-practices-blame-atn4

 Lowly penalty

Prior to fining KGB, justice Garling emphasised the need for the penalty to send a message to other companies in the transport supply chain.

“This is a case where, given the nature of the offence and the fact it occurred on a public road, the principle of general deterrence must play an important but necessarily proportionate role,” he says.

“In these circumstances, the proper punishment of the company will operate as a general deterrence for other companies who consign and load goods onto heavy vehicles for transport on the public roads of NSW from committing breaches of transport legislation, in particular of load restraint requirements, and thereby enhance road safety.”

However, the RMS believes the penalty is too low to deter others from breaching their obligations.

“The consignor was fined $18,150 out of a possible maximum of $27,500,” it says.

“It is doubtful whether this amount would have had a meaningful deterrent effect among off-road parties in the road freight industry.”

KGB’s actions amounted to a severe risk breach — the highest-level offence under COR.

The RMS tried to prosecute KGB for the COR breach as a loader and a consignor — thereby exposing it to multiple fines — and KGB pleaded guilty to both offences.

However, Garling ruled both offences were the same and that he was only permitted to impose a penalty for one offence.

He convicted and fined KGB for a loading offence and then applied a conviction only for breaching its duties as a consignor.

“The breach of the Road Transport [Act] legislation, namely, that the load was not properly secured, is identical with respect to each of the two offences,” Garling says.

“The only difference between the offences is the capacity in which the company is charged — in one offence as the consignor, in another offence as the loader.”

Procedures questioned

KGB put in place a new loading procedure after it was prosecuted for the load restraint failure.

However, court documents show Garling has serious misgivings about whether the procedure will be effective.negligent-loading-practices-blame-atn2

In his written judgment, Garling says the single page document directs KGB employees to avoid involvement in any loading procedure, as opposed to pointing out steps they can take to ensure vehicles they load or consign do not breach road transport requirements.

“Paragraphs four, five and six of the document directly relate to not taking any action and, in essence, seek to ensure that the company no longer undertakes loading, and thereby avoids any responsibility at all for the restraint of a load on any vehicle which leaves the company’s premises,” Garling says.

“I am not persuaded on the balance of probabilities that this new procedure will avoid any conduct which may constitute the one or more offences in the future.

“It may provide a basis for the company being able to mount a defence to any allegation that it has been in breach of its obligations as created by the statute, but I am not persuaded that such steps as have been taken to rectify the procedure which previously existed will mean the company is unlikely to commit any further offences of the kind with which it is charged.”

Slack procedures

Potentially more parties could have been prosecuted for the death of Darling, but they managed to avoid the courtroom because the RMS could not establish a paperwork trail.

Investigators identified six parties — including those charged — involved in the transport of the girders.

“The transport of the steel girders had been arranged through a chain of phone calls and subcontractors,” the RMS says.

“There was no process of induction or communication to confirm the skills and experience of the final subcontractor and driver.

“There was nothing done to confirm how the load was to be restrained. There was no planning for the driver to take a rest break.

“In the absence of any written agreement or other transport or journey documents, it was not possible to identify whether the conduct of other parties contributed to the load restraint failure.”

The RMS says there was a separate consignee and two other transport businesses that subcontracted the work or referred the job on.

“There was no communication about the nature of the load, its restraint or the time available for its delivery,” it says.

The RMS believes the outcome could have been different if the National Transport Commission’s (NTC) proposed changes to COR were in place.negligent-loading-practices-blame-atn3

The NTC wants to replace existing prescriptive COR standards with a general duties requirement.

The change will impose a broad safety obligation on parties but will allow them to determine how they will comply with COR.

“Under a general duties regime any one of these omissions [in the Darling case] would be a breach of the duty to ensure safety,” RMS says.

“It would not be necessary to have a crash such as this to establish the offence.

“This obligation would focus the minds of those in the transport industry on managing safety risks and thereby on prevention of incidents such as this.”

The RMS says there should have been greater effort to ensure the load was restrained properly and that correct dunnage was used to prevent the load from shifting.

“The police clearly formed the opinion the driver was reckless, charging him with manslaughter,” it says.

“The driver was not the only person who could have done more to prevent this crash.”

ATN contacted KGB but the company, through its legal representative, declined to comment.

Original Story Reproduced: http://www.fullyloaded.com.au/industry-news/1511/loading-practices-case-puts-approach-in-spotlight/?utm_source=atn_newsletter&utm_medium=email&utm_content=article1_readmore&utm_campaign=15-11-2015&user_id=be5e45e13a06c6d0407f9143cc5eaafc99e9bd83


BP Grounds Full Fleet After Accident that Killed 3 People

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BP grounds its fleet across Victoria yesterday as police start to investigate a crash that killed a 33 year old mother, her four-year-old boy and a 67-year-old driver of the second vehicle. As the second major event of a Fuel Tanker killing people within the last 12 months the National Heavy Vehicle Regulator has to more closely scrutinise Fuel industry practices for its compliance under the Chain of Responsibility Laws in Australia. The recent changes by the National Transport Commission that will also see full maintenance records form part of the prosecution and investigation process.


In the recent Lennon’s case last week the magistrate handed down record fines of 1.3 Million to the Directors of Lennon’s Transport and candidate focused on the lack of Systems, Policies, Procedures, Tools and Accredited training of staff to meet its CoR obligations under the National Heavy Vehicle Laws. www.nhvr.gov.au

In the event yesterday that killed 3 people the trailer of the BP petrol tanker became detached while rounding a bend, rolling on top of one of the cars and crushing it.

Witnesses said the truck was travelling normally before the trailer came off.

“The tanker uncoupled from the tri-axle primary vehicle, the trailer has then crossed on to the wrong side of the road and collided head on with two vehicles,” Det Insp Bernie Rankin told reporters at the scene near Wodonga.

“This is just a catastrophic situation where people innocently driving along a highway have been confronted with a situation that was impossible for them to have any control over or take any evasive action.”

A 33-year-old Allans Flat woman and her four-year-old son died in the accident on Thursday morning along with a 67-year-old Yackandandah woman in the other car.

Rankin said the trailer and truck will be examined to determine what caused the crash.

BP said that as a precaution it had recalled its entire Victorian trucking fleet and would co-operate with any investigation.

“We are deeply saddened that there have been loss of life,” a BP statement said.

No fuel spilled out of the tanker but the petrol had to be funnelled into another truck before it could be lifted off the crushed vehicle.

The truck driver, a local man in his 50s, is assisting police with their inquiries.

The deaths take Victoria’s road toll to 153, eight more than at this time last year.

Magistrate highlights Lennons flaws that led to record 1.3 Million fine

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The magistrate who ruled on the nation’s biggest fine for a trucking company so far highlights several speeding compliance management weaknesses in her judgement on 197 Lennons Transport speeding offences.

Downing Centre Local Court magistrate Lisa Stapleton found that Zaens Pty Ltd, operating as Lennons Transport, and director Tony Lennon did not have proper anti-speeding policies and procedures or take reasonable steps to prevent drivers speeding.

This remained the case despite Roads and Maritime Services (RMS) alerting the company to the problem at one stage.

“I find that these offences are close to the most serious case (on a scale of serious, very serious, most serious),” Stapleton states in her ruling document.

The compliance shortfall cost the company and Lennon a combined $1.3 million, which exceeds previous record penalty of $1.25 million against Scott’s Transport in June.

While accepting Lennon had suffered ill-health at the time, Stapleton rejects the argument that the company had a proper compliance system in place, noting that drivers themselves were responsible for reporting infringements “which might result in instant dismissal” and that explicit responsibility on managers to ensure compliance was missing.

“There is no evidence that Zaens’ management were required to, for example, check average speeds by reference to data from the GPS system, by reference to information from the drivers’ fatigue logs or by reference to pick up and delivery times recorded on consignment notes or the like,” she states.

There was no evidence that “Zaens imposed a standard time for a particular route” nor that the company required drivers “to produce a licence record to check for speeding offences” for company work.

RMS sent notices in 2010 and 2011 that company trucks had exceeded the speed limit by 15 km/h or more, including twice in December 2011 at 117 km/h and 120 km/h, but there was “no evidence to explain its system of ensuring speed limiter compliance in December 2011”.

The court accepted that since 2012 measures had been introduced including:

  • changes to the drivers’ manual emphasising speed limit compliance
  • transporting freight that is less time critical
  • nominating a manager responsible for inspecting all fatigue sheets and log books and communicating with clients about delivery times
  • fitting a speed compliance warning in all truck cabins
  • appointing Lennon’s wife to run the office, allowing Lennon more time to focus on safety management
  • identifying (with intention to install) a satellite tracking system in each truck. The system will permit tracking of time and speed
  • monthly truck servicing that included checking speed sensors, speed pulse wheels and speed limiter compliance
  • regular training of management in speed compliance issues
  • regular meetings with drivers about speed
  • an improved induction process relating to speed
  • increased background checks on employees.

However, despite an industry consultant appointed in June finding the company was a compliant business, RMS tendered records showing 30 mass or dimension offences along with the speeding offences committed by company vehicles since July 2012.

While that might show the new system has issues, the magistrate accepted that it was a system and there “is a small likelihood of reoffending”.

Due to the company’s lack of action on RMS warning notices, Stapleton was not convinced entirely on evidence of remorse other than the guilty plea. This, along with Lennon being of good character and the agreement to pay $100,000 in RMS legal costs, was enough to attract an 18 per cent penalty discount.

In the New South Wales Government’s response to the fine, roads and freight minister Duncan Gay and RMS compliance operations general manager of Paul Endycott say that the “biggest penalty in NSW history against a trucking company under chain of responsibility legislation” came after a triple fatality involving a Lennon’s truck on the Hume Highway at Menangle in January 2012.

“This is a terrible tragedy, there are no winners here, but I hope this decision by the court … brings some small comfort to the Logan family after their tragic loss,” Gay says.

“This fine of more than $1.3 million is the result of more than 18 months of investigation of the company by Roads and Maritime Services, which is separate to the NSW Police investigation into the crash.”


What is the chain of responsibility?

Drivers and operators have traditionally been the focus of road laws. However, breaches are often caused by the actions of others. Under CoR, complying with the law is a shared responsibility. Anybody – not just the driver – who has control over the transport task can be held responsible for breaches of road laws and may be legally liable. CoR is similar to the legal concept of ‘duty of care’ that underpins Occupational Health & Safety (OH&S) law. This approach has long been used by the courts to impose liability in negligence and damages claims. CoR legislation is already a feature of laws covering mass and dimension limits, load restraint requirements, driving hours and dangerous goods laws (check status with relevant road agencies).

The laws are likely to be expanded in the future for fatigue, speeding and vehicle standards. Penalties and sanctions range from formal warnings to court- imposed fines and penalties relating to the commercial benefit derived from offences. Supervisory intervention orders and prohibition orders banning individuals from the industry can be applied to ‘persistent or systematic’ offenders.