Nolan v Sims Group Australia Holdings Limited; Nolan v Delta Pty Limited

Nolan v Sims Group Australia Holdings Limited; Nolan v Delta Pty Limited - [2015] NSWSC 1424 - NSWSC 2015 case summary — Zoe

[8]

Specific facts alleged against Sims

Sims was the consignor of the load, which was subject to a height limit of 4.3 metres. At the time of the offending, Sims had a two-tier induction program in place which was designed to ensure that workers and contractors were fully briefed in respect of all relevant issues prior to commencing any work. The program included induction as to site safety rules, operations and loading procedures, and required drivers to: 1. visually inspect their truck and load prior to departing any site, so as to ensure that it was safe to travel on public roads; 2. secure the load; and 3. confirm that the weight of a truck did not exceed any applicable limit.
The induction required any driver to contact a Sims representative if assistance was required in ensuring that no vehicle left Sims' site which did not comply with these various requirements.
Sims also had in place an online occupational health and safety induction program which involved six modules relating to general safety matters. Workers and contractors were required to complete competency questionnaires so as to ensure that they understood the induction material. Kreidie completed the Sims induction program on 19 April 2012, more than six months prior to the incident.
The induction training outlined above, along with the requirement to visually inspect individual loads to ensure that they were secured, constituted the steps taken by Sims directed to ensuring that heavy vehicles delivering loads to its site did not breach any legislative obligations. In addition, any breach(es) of any obligation(s) could also be detected on an incoming weighbridge after transportation had occurred, and reported to the yard manager.
At the time of the incident, a carriers agreement existed as between Sims and Kreidies pursuant to which (inter alia): 1. Sims notified Kreidies of the haulage services it was required to undertake ("the haulage notice"); 2. Kreidies was required to provide the services requested upon receipt of the haulage notice; 3. Kreidies was required to ensure that any load collected from a scrap steep site was delivered and unloaded at Sims' yard on the same day, failing which Kreidies was responsible for the load and was required to indemnify Sims against any cost incurred; 4. Kreidies was under an obligation to obtain, and comply with, all relevant permits, licenses and approvals, as well as the requirements of any relevant authority; 5. Kreidies was responsible for ensuring that: 6. its employees and contractors successfully completed Sims' induction programs; 7. its employees complied with Sims' OH&S policies and procedures, along with site rules and regulations; 8. its employees complied with the directions and requirements of scrap metal operators; and 9. all of its drivers were properly licensed, trained and able to carry out haulage services in a competent and professional manner.
Although Sims' representatives initially declined to participate in any interview with RMS investigators, on 21 November 2012, and again on 17 March 2014, Sims complied with statutory requests made on behalf of the RMS to provide documents and information.
With respect to the nature of Sims' breach, it was agreed that Sims: 1. failed to have any, or any proper, procedures in place relating to the loading of heavy vehicles at other sites; 2. failed to provide appropriate instructions, either to Delta or Kreidies, to adequately compact and/or restrain the load before the combination carrying it departed Delta's premises; and 3. did not include, in its haulage contracts with other parties, conditions providing that where default occurred, the haulier would not be remunerated.

[10]

Affidavit evidence relied upon by Sims

Senior counsel for Sims read, without objection, an affidavit of Rod Bonnette of 7 September 2015. Mr Bonnette is employed by Sims as its General Manager for Operations in NSW. He commenced in that role in July 2013 although he has held managerial positions with Sims since 2006.
Mr Bonnette expressed his extreme regret that the incident occurred and expressly accepted that Sims bore some degree of responsibility for it. He acknowledged the serious consequences of the incident, including the damage to, and temporary closure of, the M5 tunnel. He stated that as soon as he became aware of the matter, he took steps to ensure that Sims fully cooperated with the RMS and that it entered a plea of guilty at the earliest possible opportunity.
Mr Bonnette accepted that Sims' responsibility for the incident arose from the fact that it (inter alia): 1. failed to have specific procedures in place relating to the loading of heavy vehicles at the sites of third parties such as Delta; 2. provided little more than generic induction training to transport contractors; 3. failed to (inter alia) ensure that loads did not sit outside the applicable limits; 4. failed to provide appropriate instructions to Delta that the consignment was required to be adequately compacted and/or restrained before the combination departed Delta's premises; and 5. did not include load compliance assurance conditions in its haulage contracts with parties such as Kreidies, including a condition that where default occurred a carrier would not be remunerated.
Mr Bonnette detailed, at some length, the various remedial steps which had been taken by Sims since the incident. He had (inter alia) organised a detailed review of relevant policies and procedures, as well as a review of the chain of responsibility arrangements in place between Sims and its transport contractors and suppliers. He explained that a risk assessment had been undertaken which resulted in the updating of relevant policies and training requirements. That risk assessment, a copy of which was annexed to Mr Bonnette's affidavit, identified various hazards associated with the loading of vehicles. As a consequence of the assessment, updated policies have been introduced, implementing appropriate preventative/remedial action in respect of the identified hazards.
In addition to undertaking a risk assessment, Sims also undertook a review of its arrangements with transport contractors so as to ensure: 1. the implementation of appropriate work systems and practices during the completion of transportation and related tasks; and 2. compliance, by Sims' contractors, with relevant statutory provisions and regulations.
Mr Bonnette expressed his intention to conduct periodic audits and reviews of those contractors who are regular suppliers of transport services to Sims. Any adverse audit results which might require Sims to implement any remedial action will lead to the contractor(s) in question being audited more frequently.
Mr Bonnette has also devised a response plan to deal with emergencies arising from the carriage of hazardous waste and dangerous goods. Further, as part of Sims' ongoing training program, "tool box talks" have been delivered to drivers addressing the need to: 1. ensure that loads are not above the prescribed height; 2. ensure that loads are secured; and 3. remove excess scrap metal from above the bin rim.
Between 25 and 35 such talks are now delivered each year. A training presentation has also been prepared at Mr Bonnette's direction which he expects will be completed in the near future. Once implemented, Sims will provide ongoing training not only to its own employees, but also to those employed by its transport contractors.
Finally, and at Mr Bonnette's direction, all of Sims' transport contractors have been advised that Sims will not pay any contractor for any work carried out which does not comply with relevant legislative requirements. The correspondence sent to Sims' contractors in this regard, which was annexed to Mr Bonnette's affidavit, invites any contractor to contact Sims in the event that they are required to undertake a task which will, or may, breach relevant transport regulations in relation to load dimension. In this way, Sims seeks to ensure that it is put on notice of any difficulties, thus allowing for remedial action to be taken in advance in an effort to eliminate the possibility of any breach.

[11]

Affidavit evidence relied upon by Delta

Counsel for Delta read, without objection, two affidavits, namely: 1. an affidavit of Con Petropoulos of 7 September 2015; and 2. an affidavit Neville Williams of 8 September 2015.
Mr Petropoulos is the sole director of Delta. He acknowledged that Delta had been responsible for "the breakdown of the chain of responsibility that led to the damage to the tunnel". He also acknowledged that although Delta's trucks were routinely measured for height compliance before leaving its yard, the trucks of third parties were not.
Mr Petropoulos stated that the procedures which allowed the combination to leave Delta's premises as it did have now been changed in an effort to ensure that this incident is not repeated. Mr Petropoulos described himself as being "horrified" by what occurred, and expressly acknowledged its serious consequences, including the damage to the tunnel, and the consequent closure of an important arterial road for an extended period.
Mr Williams commenced employment with Delta on 3 February 2014 as the National Safety Quality and Environment Manager. Prior to his appointment there was no individual within Delta whose role was to ensure that it complied with the responsibilities imposed upon it in respect of its transport operations. Although, prior to Mr Williams commencing employment, there were "overlapping" systems in place directed towards ensuring such compliance, Mr Williams candidly acknowledged that those systems lacked cohesion, and that in order to be effective they required overall co-ordination and supervision by a single person or division. This, I infer, was what caused Mr Williams to develop what might be described as a "stand-alone" compliance division, whose role is to oversee the entirety of Delta's transport operations, and whose responsibilities include an evaluation of all compliance issues.
In addition to the creation of the compliance division, Mr Williams has overseen the implementation of a number of other changes since assuming his role. These have included: 1. holding an annual conference for the purposes of discussing (inter alia) safety issues; 2. implementing a registration system which records and identifies the ongoing need for staff training; 3. introducing an internal transport audit directed to issues such as maintenance management and fatigue management; 4. developing a memorandum of understanding for all transport contractors which addresses (inter alia) roles and responsibilities; 5. introducing agreements with contractors which acknowledge that such contractors are required to do all things necessary to assist Delta in discharging its legal obligations; and 6. establishing an advisory group to provide strategic advice to Delta's management in relation to the operations of its transport division.
Mr Williams also set out the specific action which had been taken immediately following the incident. He said that an Incident Report Form was completed, and that the recommended remedial action included steps being taken to ensure that drivers and sub-contractors were aware of their vehicle clearance height before leaving the yard. He confirmed that Al Dhaybi was required to undergo re-induction in relation to issues of work place safety following the incident.

[12]

THE RELEVANT LEGISLATIVE PROVISIONS

Section 53 of the RTG Act is in the following terms: 53 Liability of consignor (cf model provisions, s 91) (1) A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the consignor of any goods that are in or on the vehicle or combination concerned. Maximum penalty: see Table to Division. (2) A person is guilty an offence if: (a) the weight of a freight container containing goods consigned for road transport exceeds the maximum gross weight as marked on the container or on the container's safety approval plate, and (b) the person is the consignor of any of the goods contained in the freight container. Maximum penalty: (a) first offence - 50 penalty units (in the case of an individual) or 250 penalty units (in the case of a corporation), or (b) subsequent offence - 100 penalty units (in the case of an individual) or 500 penalty units (in the case of a corporation). (3) A person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
Section 55 of the RTG Act is in the following terms: 55 Liability of loader (cf model provisions, s 93) (1) A person is guilty of an offence if: (a) a breach of a mass, dimension or load restraint requirement occurs, and (b) the person is the loader of any goods that are in or on the vehicle or combination concerned. Maximum penalty: see Table to Division. (2) A person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
Section 210 of the RTG Act gives the Court power to make an order for compensation for a person who is found guilty of an offence. Section 214 gives the Court a similar power to award costs.
On 9 February 2014 the RTG Act was replaced by the Road Transport (Vehicle and Driver Management) Act 2005 ("the RTV Act"). Section 37(3) of the RTV Act is in the following terms: 37 Lower limits - height breaches (cf model provisions, s 74) … (3) Severe risk breach The lower limit for a severe risk breach of a dimension requirement to which this section applies is 300 millimetres over the maximum permissible dimension limit.
Section 60 of the RTV Act sets out matters to be taken into account on the assessment of penalty: 60 Matters to be taken into consideration by courts (cf model provisions, s 97) (1) The purpose of this section is to bring to the attention of courts the general implications and consequences of breaches of mass, dimension or load restraint requirements when determining the kinds and levels of sanctions to be imposed. (2) In determining the sanctions (including the level of fine) that are to be imposed in respect of breaches of mass, dimension or load restraint requirements, a court is to take into consideration the classification of the breach under this Part and, having regard to that classification, the following matters: (a) … (b) … (c) severe risk breaches involve one or more of the following: (i) an appreciable risk of harm to public safety or the environment, (ii) a serious risk of accelerated road wear, (iii) a serious risk of harm to road infrastructure, (iv) a serious risk of increased traffic congestion, (v) a serious risk of diminished public amenity, (vi) a serious risk of unfair commercial advantage. (3) Nothing in this section affects any other matters that may or must be taken into consideration by a court. (4) Nothing in this section authorises or requires a court to assign the breach to a different category of breach. (5) Nothing in this section requires evidence to be adduced in relation to the matters that are to be taken into consideration by a court pursuant to this section.
Finally, it is common ground between the parties that the provisions of ss. 3, along with some of the provisions of s. 21A of the Crimes (Sentencing and Procedure) Act 1999 ("the Sentencing Act"), apply to the proceedings against each defendant.

[13]

Submissions of the prosecutor - general matters

Counsel for the prosecutor drew attention to the fact that for the purposes of s. 37(3) of the RTV Act, the maximum permissible dimension limit was 4.3m. It followed that any instance in which the combination exceeded 4.6m was a severe risk breach. In the present case, the height of the combination was measured at 4.97m, some 670mm in excess of the permissible dimension limit. It was submitted that in these circumstance the matters in s. 60(2)(c)(ii)-(v) of the RTV Act were particularly relevant: Roads and Traffic Authority of NSW v Fletcher International Exports Pty Limited [2008] NSWSC 936; (2008) 51 MVR 41 at [40]; Roads and Maritime Services v L&M Scott Haulage Pty Limited [2013] NSWCCA 107; (2013) 63 MVR 367 at [25]-[27].
Counsel for the prosecutor also drew attention to the consequences which actually flowed from the commission of the offence in each case, namely: 1. the damage to the tunnel infrastructure; 2. the requirement to disconnect services to the tunnel; 3. the extent of necessary repairs; and 4. the closure of the tunnel for a lengthy period.
All of these matters, it was submitted, were relevant to the assessment of penalty: Endycott (Roads and Martime Services) v Griffiths Garage Pty Limited [2012] NSWSC 1131 at [11]-[15]. It was further submitted that such matters aggravated the offending in terms of s. 21A(2)(g) of the Sentencing Act: Kemp v Doble; Kemp v Doble Express Transport Pty Limited [2014] NSWSC 785; (2014) 67 MVR 167 at [30].
Counsel cited a number of circumstances which, it was submitted, bore upon an assessment of the objective seriousness of the offending in respect of each defendant. These included: 1. the fact that prior to entering the tunnel, the combination travelled on one or more major arterial roads, including the M5 east motorway, within the Sydney metropolitan area; 2. the fact that such roads were regularly used by large volumes of traffic at any hour of the day; 3. the substantial damage occasioned to the M5 east tunnel as a consequence of the incident; 4. the necessity to close the tunnel for approximately 14 hours; and 5. the substantial disruption to traffic which occurred as a result.
Counsel for the prosecutor also submitted that general deterrence was an important consideration on sentence: Kemp v Liquide Australia Pty Limited (supra) at [10]; [13]. However he did not suggest that specific deterrence was any real significance in the present case.
Counsel acknowledged that each defendant had pleaded guilty at the first available opportunity which was a relevant factor in light of ss. 21A(3)(k) and 22 of the Sentencing Act. He further acknowledged that in accordance with the principles set out in R v Thomson. R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 each defendant was entitled to a discount to recognise the utilitarian value of the plea. I did not understand counsel for the prosecutor to cavil with the proposition that a discount of 25% was appropriate in each case.
Counsel for the prosecutor acknowledged the co-operation of each defendant. He also acknowledged the evidence of contrition and remorse in each case which, he accepted, was a mitigating factor pursuant to s. 21A(3)(i) of the Sentencing Act. He also accepted, as I understood it, that the steps taken by each defendant since the incident supported a conclusion that neither defendant was likely to re-offend. Finally, he conceded that neither defendant had previously come under notice for an offence of this kind.

[17]

Submissions on behalf of Delta

Counsel for Delta pointed to a number of mitigating factors including: 1. its plea of guilty; 2. its prior unblemished record; 3. its co-operation with the RMS; 4. its remorse, expressed through the affidavit of Mr Petropoulos; 5. its acknowledgment, through Mr Petropoulos, of the damage which had been occasioned as a consequence of the incident; 6. its agreement to pay a significant amount of compensation.
It was submitted that Delta's offending was "moderate" because it had an expectation that the driver would in fact check the load height before departing. Whilst counsel candidly acknowledged that checking by Delta's own staff would have ensured height compliance, he submitted that there was, in place, an "inherent measuring device" by reference to the water line of the vehicle. He also emphasised that prior to the incident Delta had in place what he described as "significant induction and on-going training".
It was submitted that the process of identifying risks, and introducing systems to manage them, was an evolving process, and that Mr Williams' affidavit demonstrated that a system of risk assessment had been implemented prior to this incident. Counsel submitted that the absence of any prior breaches on the part of Delta indicated that it took its obligations seriously, and that the measures it had put in place prior to the incident had gone a considerable way to addressing the relevant risks.
Counsel for Delta acknowledged the importance of general deterrence. As to specific deterrence, he pointed out that Delta was a company involved in a "significant number of journeys" within the State as the recipient of major work projects. It was submitted that the absence of any prior convictions demonstrated the fact that the procedures which had been put in place by Delta prior to the incident had worked effectively for many years. It was further submitted that the efforts which had been made by Delta to address issues of safety since the accident, as set out in the affidavit of Mr Williams, supported the conclusion that specific deterrence was irrelevant in the present case.
Counsel further submitted that in employing Mr Williams, Delta had undertaken a significant and costly compliance burden, and had previously engaged its lawyers to undertake an examination of the adequacy of its systems. It was submitted that these factors supported a conclusion that Delta took its obligations seriously and that it was unlikely to re-offend.

[18]

General considerations as to penalty

A number of considerations are common to the determination of penalty as against each defendant.
Firstly, it is relevant to bear in mind the underlying purpose of the legislation under which the defendants have been charged. In Department of Transport Energy and Infrastructure v Neil [2009] SASC 285; (2009) 53 MVR 467 Sulan J, in reference to similar legislation operating in South Australia, made the following observation (at [22]): "The purpose of the legislation is to ensure the safety of road users. A part of that is the requirement that roads and infrastructure be maintained. The scheme of penalties is such that more serious breaches will attract greater penalties. Parliament intended that penalties not only have a punitive effect on those who offend, but also act as a personal and general deterrent to drivers and owners who cart loads which are overweight".
Secondly, as noted at [45] above, I am obliged to have regard the matters set out in s. 60 of the RTV Act. In the context of the present case, I have had regard to the fact that the respective breaches by the defendants involved serious risk of: 1. accelerated road wear; 2. harm to road infrastructure; 3. increased traffic congestion; and 4. a diminished public amenity.
However, it is also important to bear in mind that although the provisions of s. 60 reflect a policy objective that Courts be made aware of, and take into account, general implications and consequences of breaches when imposing penalties for offences, the factors set out in that section are not to be regarded as factors which aggravate the offending in the case of either defendant: L&M Scott Haulage (supra) at [25]-[27] per Latham J, (Button J and Grove AJ agreeing).
Thirdly, nothing in s. 60 affects any other matter which is relevant to penalty, such as the provisions of ss. 3A and 21A of the Sentencing Act: Roads and Traffic Authority of NSW v Fletcher International Exports Pty Limited (supra) at [40].

[20]

Mitigating factors common to each defendant

There are several mitigating factors upon which each defendant is entitled to rely, and which I take into account.
Firstly, it is common ground that the plea of guilty was entered at the first available opportunity in each case. That is a mitigating factor in terms of ss. 21A(3)(k) and 22 of the Sentencing Act and entitles each defendant to a discount of 25%.
Secondly, in circumstances where both defendants operate a substantial commercial enterprise, neither has previously come under notice for offending of this kind. That is a mitigating factor in terms of s. 21A(3)(e) of the Sentencing Act.
Thirdly, I am satisfied on the evidence that substantial measures have been put in place by each defendant which are specifically addressed to ensuring, as far as one can, that the offending is not repeated. I am satisfied in these circumstances that in each case, the defendant is unlikely to re-offend and has good prospects of rehabilitation. These are mitigating factors in terms of ss. 21A(3)(g) and (h) respectively of the Sentencing Act.
Fourthly, the offending was not, in the case of either defendant, part of a planned or organised criminal activity. That is a mitigating factor in terms of s. 21A(3)(n) of the Sentencing Act.
Fifthly, I am satisfied that each defendant has expressed its remorse in the manner contemplated by s. 21A(3)(i) of the Sentencing Act.
Sixthly, whilst the plea of guilty in each case is a recognition of the fact that each defendant could reasonably have taken steps directed to ensuring that the load did not exceed the relevant dimensional requirements, neither defendant had, in the period leading up to the accident, totally abandoned its responsibilities by ignoring the need to implement safety procedures. On the contrary, and as I have pointed out, each defendant did have measures in place. Although such respective measures were obviously not sufficient to prevent this incident, the fact that they were put in place at all is a matter which each defendant is entitled to have taken into account. Given the fact that neither defendant had previously come under notice, it is clear that the measures taken by each of them prior to the accident were not insignificant.

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