Two off road parties have been prosecuted and fined under chain of responsibility rules in a recent case in New South Wales. Transport law specialist lawyers, Cooper Grace Ward, have published some information about the case and conclude the case highlights the significant penalties that can be imposed by the courts on off road parties in the ‘chain of responsibility’.
“In our experience, many ‘off road’ parties such as consignors are unaware of the potential liabilities they undertake and have inadequate or no policies and procedures dealing with loading of goods,” said the Legal Alert from Cooper Grace Ward.
The case involved a load breaching height regulations and causing substantial damage to the M5 tunnel in Sydney. The New South Wales Supreme Court ordered two companies, Sims Group and Delta, to pay fines and compensation to RMS as a result of the over loading.
In October 2012, Sims had contracted a transport operator to collect and transport scrap steel from Delta, a seller of recyclable scrap steel. After the truck was loaded, the driver inspected the load, but did not measure its height and did not secure or cover the load.
In fact the load was 4.97 metres high and set off from the Delta site on its way to Sims’ premises. However, on entering the tunnel on the M5 South-West Motorway, the over height load struck a steel beam on the ceiling of the tunnel, causing significant damage and also causing the closure of the tunnel for more than 16 hours.
Th RMS brought forward a case against Sims and Delta. Both parties pleaded guilty to the charges. Sims did have an induction program for employees to ensure rules were not broken, but were found to have inadequate procedures in place relating to the loading of heavy vehicles at third party sites. The judgement said Sims failed to provide appropriate instructions to Delta or the transport operator to adequately compact or restrain the load before the vehicle departed from Delta. The company was also found to have not included compliance assurance conditions in its contracts with transport operators.
Delta pleaded guilty based on its COR obligations as a loader. Its standard work practice required the scrap metal to be loaded and compressed by the excavator operator and covered by the driver before departing. However, Delta did not use any measuring device to check the load height before it left the Delta site.
The breach of height regulations was found to be a severe risk and the load had travelled along major arterial roads with a load substantially in excess of dimensional limits. The significant damage to the tunnel was also said to be an aggravating factor considered in sentencing.
The Court fined Sims and Delta $3,000 and $6,000 respectively, but Sims was ordered to pay over $55,000 to RMS for the damage caused to the tunnel, and $40,000 for prosecutor’s costs. Delta was ordered to pay approximately $66,500 to RMS for the damage to the tunnel, and $42,500 for prosecutor’s costs.