REAL COR STORIES
As a long-term partner of the transport and logistics industries, we've come across a number of incidents which have resulted in Chain of Responsibility laws being enforced.
The following examples highlight the importance of understanding and documenting risk mitigation processes within your business:
CLOSING THE GATE AFTER THE HORSE HAS BOLTED
In May 2011, a provider of industrial gases engaged a transport company to deliver a full modular bundle of nitrogen gas bottles from a winery and pick up five empty modules.
Without first visiting the industrial gas company's premises to collect consignment documentation, a truck and pig trailer from the transport company visited the winery and picked up the five empty modules - weighing around 3,500kg in total - and loaded them onto the pig trailer.
The driver restrained the five modules with a single, 2,500kg rated, ratchet strap.
While driving near Mudgee, the load shifted on the trailer as it rounded a bend. The trailer rolled, became separated from the towing vehicle, and the gas cylinder modules in turn became separated from the trailer.
A portion of the trailer and at least one of the gas cylinder modules struck another vehicle, killing the driver.
The truck driver, the consignor (the industrial gas company) and the transport operator (both the company and its director) were all prosecuted.
The driver was sentenced to a six month jail term for driving a loaded vehicle unsafely causing death.
The industrial gas company was fined $5,500. The judge made it clear that by putting in place additional controls, the company was only taking steps which should have already been in place prior to the incident. Furthermore, the judge observed that these controls were only put in place two years after the incident in response to the company being charged with the offences - not as a result of the incident itself.
The transport operator was fined $24,750, with the transport company director fined $4,400. The judge applied penalties towards the highest end available at the time - his reasoning being that the steps the transport operator had taken after the incident were relatively limited and did not satisfy him that they would not offend again.
UNDOCUMENTED AND UNCONTROLLED RISK
In July 2011, a truck was loaded with fabricated steel sections at a protective coatings business.
The steel was loaded onto the truck by staff from the protective coating business in Newcastle for delivery to Orange, NSW.
As the vehicle was leaving Bathurst to the west, a vehicle clipped the over-dimension flags on the trailer.
The driver of the truck asked over the UHF radio if that vehicle had struck his load and was told that no, the vehicle had only struck his flags.
Shortly afterwards, part of the load shifted off the trailer and struck a vehicle coming the other direction in the windscreen, instantly killing the driver, the steel then continued along the road striking other vehicles, but without further serious injuries.
The coatings company, the transport operator and the driver were all prosecuted.
In the case of the coatings company, the court found that their loading staff had received no training in loading or load restraint. The court also found that there were no processes to ensure that the driver was appropriately skilled and trained to plan, control or verify that the load was appropriately restrained.
The transport operator (both as a company and its director personally) were also found guilty of breaching the applicable transport laws. The case against the operator focused on the supply of soft wood timber to be used as dunnage (packing material to support the load). The court found that soft wood dunnage was inappropriate for the task and that the load shift had been caused by specific defects in the dunnage provided.
The driver was acquitted of dangerous driving occasioning death, driving in a dangerous manner, and manslaughter by criminal negligence.
A PROCESS WRITTEN BUT NOT LIVED
In November 2012, a metal recycling company organised for a transport operator to transport a load of steel from a demolition business in Alexandria, NSW to its own premises at St Marys.
The Alexandria demolition business loaded the trailers with scrap metal but while it had procedures for checking its own trucks for height compliance, this process did not extend to third party trucks.
The driver (an employee of the transport operator) inspected the load but did not measure the height of the load and did not secure or cover the load.
He then proceeded to drive the vehicle towards its destination, apparently unaware that his load was 4.97 metres high.
His route took him through the M5 tunnel. Upon entering the tunnel, his load struck the roof causing significant damage and the closure of the tunnel for over 16 hours.
Both the demolition business and metal recycler were prosecuted by NSW Roads and Maritime Services.
The court found that while the metal recycler had induction and training processes, it did not have assurance conditions in place to confirm that contractors were operating in a compliant manner.
In regards to the demolition business, the court ruled that it had ultimate control over the loading process and had failed to take the very affordable step of providing a tape measure to drivers.
The total costs imposed by the courts were $95,300 for the metal recycler and $115,000 for the demolition business. These penalties would likely have been significantly higher had they occurred after the 1 October 2018 CoR reforms were in place.