A director and an operator have been convicted in a recent decision by the Supreme Court of NSW's Court of Appeal involving offences for breaching load restraint requirements.
In May 2015, the Supreme Court handed down judgement in Kemp v Walker; Kemp v Robbie Walker Transport Operations (2015). The decision is notable, not only because of the tragedy of the circumstances, but also due to:
- the good standing and work history of both the operator company and individual director convicted of load restraint offences
- the seemingly limited opportunity that the defendants had to prevent the offence from occurring.
It also serves as an example of the application of the Load Restraint Guide provisions in relation to dunnage (i.e. cheap material used to secure cargo during transportation).
The prosecution was brought under the Road Transport (General) Act 2005 (NSW) (RT Act), which has since been repealed and replaced by the Road Transport Act 2013 (NSW). The incident, which occurred on the Mitchell Highway near Bathurst on 14 July 2011, involved a vehicle and trailer (a combination), operated by Robbie Walker Transport Operations Pty Ltd (RWTO). The vehicle was carrying a load of prefabricated steel beams. Part of the load fell from the trailer and impacted with a number of passenger vehicles coming from the opposite direction, causing damage to the vehicles, and resulting in the death of a woman in one of the oncoming vehicles.
The load had been restrained using dunnage (lengths of soft wood timber supplied by RWTO). Chains and straps were also used to secure the load. After the incident, it was found that the dunnage had compressed under the weight of the load, and one of the pieces of timber failed due to an inherent defect known as sap inclusion. Neither defendant had any awareness of the defect.
RWTO and Mr Walker, as sole director of the company, each pleaded guilty to a load restraint requirement breach offence under the RT Act. On the evidence, the judge found that the part of the load that had fallen from the vehicle fell due to:
- the sap inclusion defect in the dunnage
- the soft wood dunnage being inadequate to support the load.
Reference was made to section B of the National Transport Commission and Roads & Traffic Authority NSW Load Restraint Guide, which states that: 'Timber which is used for dunnage should be relatively free of knots and splits. For heavy loads such as large steel sections that are supported on small areas of contact, the dunnage should be strong enough to prevent it [from] crushing or splitting.'
Liability of the director, Mr Walker, derived from s 178(1) of the RT Act, which provides that where a body corporate commits an offence, a director of that body corporate and any person concerned in its management 'is taken to have committed the offence and is punishable accordingly'. However, it was not suggested that Mr Walker had any personal involvement in the particular transport operation at any stage.
For each defendant, it was noted that there were a number of mitigating factors involved in the offences. These included:
- the deep remorse expressed by Mr Walker for the event, including its influence in his decision to cease any further involvement in the transport industry;
- the entry of early guilty pleas and full cooperation with the police and NSW transport agency as the prosecuting authority
- the fact that neither the company nor Mr Walker were aware of the defect in the dunnage
- the acceptance that Mr Walker is of good character
- the fact that neither the company nor Mr Walker had previously come under notice for contravention of any road safety legislation, or of any load restraint regulations or guidelines
- the fact that Mr Walker took a responsible approach to the recruitment of drivers and personally took steps to ensure their regulatory compliance, including those directed to secure the load.
The defendants accepted that the breaches of the load restraint requirements amounted to a severe risk. The company was fined $16,500, and Mr Walker as director was fined $900. The Court also ordered that the defendants pay the prosecutor's costs, assessed at $20,000.
NOTE: There was no evidence as to whether the sap inclusion defect should have been discoverable by the defendants on a careful inspection of the dunnage. The Court simply found that the dunnage used was not strong enough to prevent it from crushing, as required by the Load Restraint Guide. The question for CoR parties subject to load restraint duties is therefore what reasonable steps can be taken to assess the strength of any dunnage used to avoid crushing or splitting, and to avoid the potential presence of a sap inclusion defect.
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