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[2017] NSWLC 22
Local Court of NSW
2015-11-20
Original judgment source is linked above.
Overview
The Legislation
(6) It is a defence to an offence under this clause if the accused person establishes that: (a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence, and (b) either: (i) the person took all reasonable steps to prevent that conduct from occurring, or (ii) there were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring. (7) For the purposes of this clause: (a) it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence, and (b) evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction, and (c) evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice. Road Transport (General) Regulation 2005 (NSW) 152 Definitions (1) In this clause: operator, in relation to a regulated heavy vehicle, means a person who is responsible for controlling or directing the operations of: (a) in the case of a vehicle (including a vehicle in a combination) - the vehicle, or (b) in the case of a combination - the towing vehicle in the combination, but does not include a person merely because the person: (c) owns the vehicle or combination, or (d) drives the vehicle or combination, or (e) maintains, or arranges for the maintenance of, the vehicle or combination, or (f) arranges for the registration of the vehicle. In considering cl.156(6)(b)(i) of the statutory defence, the court may consider the following non-exhaustive matters: - Road Transport (General) Regulation 2005 (NSW) 165 Matters court may consider for deciding whether person took all reasonable steps A court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including: (a) the nature of the aspect or risk that the person was attempting to, or should have been attempting to, address, and (b) the likelihood of a risk eventuating, and (c) the degree of harm that would result if a risk did eventuate, and (d) if a driver has been speeding - the circumstances of the offence (for example, the risk category that the offence belongs to), and (e) the abilities, experience, expertise, knowledge, qualifications and training that the person, or the person's agent or employee, had or ought reasonably to have had, and (f) the availability and suitability of ways to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating, and (g) the cost of eliminating a risk or minimising the likelihood of a risk eventuating.
CANs withdrawn and dismissed
Statement of Agreed Facts
Dranmore Pty Limited and Mr Frederick Borg
GE & CD Hommes Pty Limited and Mr Danny Borg
Laudrup Pty Limited, Mr Grant Borg and Mr Danny Borg
Roadmaster Driving Tutorial Pty Limited and Mr Frederick Borg
Cautionary Criminal Trial Directions and Onus and Standard of Proof
Certain offences
Issues for determination
Accuracy of device technology
Reasonable Steps Defence
Defence case
Mr Philip Dunn (Expert, Automotive and Mechanical Engineer)
Ms Jenine Turner (Heavy Vehicle Auditor / Consultant)
Mr Danny Borg (Managing Director)
I rejected the assertion that the non-provision of (or delay in providing) any documents was intended as a means of withholding evidence of compliance or reasonable steps, or to enable documents to be fabricated, or because the documents were irrelevant to speed and instead relevant only to other aspects such as the management of mass, loading and fatigue. What emerged from the evidence of Mr Borg was that there was an overarching interaction between the various procedures the Defendants had in place and issues of safety, which, by their inherent nature, encompassed speed, including compliance as a business with industrial relations obligations. These several factors were inextricably linked and could not be divorced from one another in some academically surgical, and purportedly legislatively driven, extraction; 1. As to the contents of the Driver Manual, and the exploration in cross-examination of the idea that it represented a reasonable step in preventing speeding, it was suggested to him that the reason why it included a reference to making drivers aware that turning off the vehicle's lights so as to avoid detection at safety cam sites was fatigue management related rather than speed related. He disagreed. He stated that the reason for its inclusion was partly because it predated the 2011 / 2012 period and because they had had incidents of that kind in the past and believed that the same could happen again (T2.3.2016, 55.19 - 56.13, Mr Borg XXN); 2. As to the contents of the Driver Manual in relation to deviating from one's set route (route assessments and trip plans), it was suggested to him that this did not deal with speed but, rather, road conditions for certain types of heavy vehicles. He disagreed. Consistent with the Defendants' policies and procedures, he stated that it dealt with both road conditions and speed. He gave an example that if a driver deviated on a route that took him into an area of operation of hilly, as opposed to flat, terrain, the potential for greater speed issues became apparent. If a vehicle was working harder to climb that terrain, there was an enhanced risk of it speeding down the other side. That, he said, was its correlation with speed. As he put it, it was "multi-faceted" (T2.3.2016, 56.15 - 57.4, Mr Borg XXN). This, I should add, captured the essence of the enlivenment of the Defendants' reasonable steps defence; 3. As to the contents of the Driver Manual in relation to driving habits (more particularly, the ineffectiveness of speed limiter devices to slow a heavy vehicle's speed on downward slopes), and extent to which that was a reasonable step in preventing speeding, it was suggested to him that the Defence had not called any evidence that, first, any of the 150 incidents of speeding were as a result of a downward slope contributing to the speed of the vehicle or, secondly, that the speed limiter device was ineffective for any of these 150 incidents of speeding. He agreed with the first proposition, adding that this did not, however, exclude the possibility that there were gradients that potentially contributed to these issues. He stated that it would have been a laborious task to attempt to do so, particularly given that most of the drivers from 2012 were no longer employed with the company and that to attempt to round up some 30 heavy vehicle drivers to testify to something of that description was probably whimsical at best (T2.3.2016, 57.44 - 63.29, Mr Borg XXN). More specifically, the frustration in Mr Borg's response to the prosecuting authority's excoriation of the Defendants' practices is laid bare in the following exchange, a matter which he had no difficulty conceding (T2.3.2016, 62.46 - 63.29, Mr Borg XXN): - "Q. In May 2012 you became aware via the court attendance notices of the nature of the case, and you made no attempts to obtain an account from the drivers as to whether slope contributed to an offence? A. I disagree with that because at the time my view on it was, it was something that was first and foremost in our mind that may possibly allow some room to move for us, given that it's probably safe to say that if you're travelling south on the Hume Highway from Goulburn it is downhill and there are cameras there, so there's certainly some obvious ones there where speed limiters are ineffectual, the - after fairly lengthy consideration from my end and considering the enormity of the task of assessing gradients and given locations regardless of the simplistic nature of the information provided in the CANs providing dates, time, vehicle registrations and so on, it was the enormity of trying to put something of that nature together at a time when this whole matter started we were dealing with a smear campaign in the media and inundated with media calls, inundated with customer issues and effectively still trying to manage our business and deal with this matter at the same time, I guess simply put, we just questioned whether we would get any value out of it and how would we put something of that nature together, given that we're talking about multiple locations around the State of New South Wales, I did in actual fact talk to one or two drivers involved and ask them about some specific sites that came up in relation to the CANs, in typical driver fashion they dismissed and said you do have to be a little bit careful in that area, you can get going a little bit quick, so I'm having conversations of that nature and thinking to myself is there any value in bringing 30 drivers to court to testify to something of that description that I think at the end of the day my simple view was that we would spend a lot of time and money and resources for probably not that great of an affect in terms of what evidence would be provided, now you could run the argument and say if you had done that it could create some definitive framework around the speed limiter argument, but the speed limiter argument in isolation again isn't the be all and end all, the vehicle speed being controlled, regardless of where the vehicle is operating at any given point in time on a particular section of road, again we're trying to isolate one particular item that we can hang our hat on. That is my view, that is the view that I took at the time your Honour as to why we didn't go down that path." The second proposition (that the Defence had not called any evidence that the speed limiter device was ineffective for any of the 150 incidents of speeding) was not pursued further in any meaningful way, nor did it elicit a response. It should be remembered, though, that in the report of Mr Philip Dunn (Automotive and Mechanical Engineer, Expert Report dated 9 November 2015, Ex.15), he opined that there were, at times, outside factors such as downhill travel which were unable to be controlled by the ECM, resulting in speeds greater than the set speed. In addition, his oral evidence, in part, was to the effect that if a heavy vehicle had a speed limiter device set at 100 km/h, it could still exceed such speed in a number of ways, including on a downhill grade; by selecting a neutral gear; by throwing the clutch on a manual transmission; or by a tail wind; 1. As to the proposition that there the Defendants had the ability to, but did not, use the ECM read-only option tool, in-house, to provide a read out of operating hours over a three to six month period so as to determine whether a driver was speeding over a period of time, he stated that looking at the read-only option of hours and kilometres on the ECMs was a fairly laborious process and needed to be cross-referenced to relative day / movement sheets from various operations staff. It was something, he said they looked at, when first introduced, to determine whether it was feasible to accurately track an incident at a given point, using such process. It was established at that point in time that it was technically possible but there were questions in relation to how effective it would be. Given the time and effort required, it was felt that such a labour intensive process was ineffectual and probably did not offer any real value. It was, as he put it, unachievable for the most part. He elaborated and explained the technical aspects of this methodology by adding that (T2.3.2016, 63.40 - 65.5, Mr Borg XXN): "… looking at an engine hour time, doesn't necessarily specifically take us to a given point in time, it tells us what hours an engine has done, so if we had a reading on Monday at 13,000 hours and by Wednesday it was 13, 227 and we looked a movement sheets and said this vehicle has done Melbourne, Sydney, Sydney, Melbourne and you know it's come back and done a Melbourne, Brisbane and operated for that period of hours then you could create effectively what we call a time and date stamp, it would allow us to say that vehicle was within a reasonable degree of accuracy at a given location at a given point in time, I think the manner in which I've explained it clearly highlights the level of detail and work involved in trying to look at 50 ECMs that for the most part are operating on highway not in a depot being able to be read or downloaded, that trying to use a system of that nature to the end that you're describing is for the most part unachievable, you would have to have vehicles coming in on a daily basis at a national level, being downloaded and reports printed off, a read-only option would not be enough information just to look at a screen, you would need to be recording very relevant levels of data to use a system of that nature to try and identify the location of a vehicle against a CAN that says a vehicle was doing 103 at 2am on 13 June 2011." [My emphasis underlined] The inference comfortably drawn from this evidence was that such an incomparable degree of daily inquiry was unfeasible and unrealistic and supplanted reasonableness in favour of superlativeness as the appropriate test. At such a high level, the Defendants' business would shift from goods transportation and be devoted almost solely to monitoring its heavy vehicles' ECMs; 1. The suggestion that Mr Borg's earlier evidence (that GPS technology was not introduced into the fleet until late 2012) was irreconcilable with the description in a Hartwigs invoice dated 30 March 2012 (MFI J, Tab 5.8, p.285) which stated "Test drive with GPS" was easily explained. He stated that the device referred to was a portable GPS unit used by the mechanical workshop to test calibration headings after workshop servicing. The vehicle in question was not a vehicle fitted with a GPS system owned by the Defendants (T3.3.2016, 2.19 - 2.46, Mr Borg XXN); 2. He readily conceded that the non-conformance reports shown to him in the witness box had not been used for speed compliance but, rather, mass management. He stated that he could not recall there being similar non-conformance report documents which specifically dealt with speeding. At that time, they were not aware of an enormous amount of speed report issues that needed addressing. Putting aside the documentary processes in place and referred to earlier, the underlying means by which such issues were typically dealt with was via a written report or in a verbal communicative manner as previously described. He did not agree that the non-conformance report template did not represent part of management's system for monitoring and dealing with speed. He emphasised the point that non-conformance reports were part of a system which addressed multiple purposes of non-conformance, not just ones confined to speed, weight, incidents, accidents and the like (T3.3.2016, 2.48 - 7.4, Mr Borg XXN); 3. As to the Defendants' disciplinary processes regarding speeding, he was taken to a number of three-strikes warning notices received from the RMS, some of which were within the offence period, some of which related to charge matters proper, some of which were not related to charges and some of which were accompanied by directives to have the speed limiter checked. Some incidents were due to driver behaviour (exceeding the speed limit applicable on that particular road but not the 100 km/h maximum applicable to all trucks) rather than speed limiter issues. Some may have been due to other explanations, such as the slope of the road. He stated that to the best of his knowledge, there was no specific amendment to the way speed was addressed based upon these documents in the 2013 evolutionary phase of the Driver Manual. He stated that the Manual already contained references to speeding. He was asked, as a result of management's notification of these incidents of speeding, whether the Defendants revisited or amended their induction or employment processes (such as reference checks and driving records). He stated that their documents were revisited on a constant basis, regardless of whether this was driven by a specific notification or otherwise. The documents were in a state of constant and continual evolution in respect of the environment in which they operated. He rejected the idea that every time an incident of speed came to their notice, they would need to rewrite the references to speed in the induction processes or company manuals, unless there was something very specific that was different to what they had seen in the past and which might have required a different methodology to deal with the issue. His scrupulous knowledge of the theoretical processes in place as well as possessing an astute street-level awareness of the industry was not lost on the Court. He stated that they were aware of the fact that drivers had often been intercepted and issued with a fine of some description and, given most drivers' modest financial means, would more often than not borrow money to pay fines. This spoke volumes because an awareness of this kind could never be addressed, in my view, by expressionless amendments in paragraphs within a Driver Manual. What was required, he reiterated, was a combination of written and verbal communications, as I understood it, tailored to be understood by each driver the subject of an incident of this kind (T3.3.2016, 7.40 - 17.6, Mr Borg XXN); 4. One of the most intriguing questions asked of him was "what number is enough?" It was also asked of him in another way: "What's the threshold for management in 2011 and 2012?" Given where they featured in cross-examination, I understood these questions to be inviting the witness to provide a view about how many incidents of speeding would management be notified of before it made changes to its Driver Manual, induction and employment processes and management's overall approach. His response illuminated one of the real problems with the basis on which the Prosecution sought to challenge the reasonableness of the Defendants' processes. The complete response is captured in the following exchange (T3.3.2016, 17.8 - 18.27, Mr Borg XXN): "Q. What number is enough? A. It's not a question of numbers it's a question of the nature of the incident. So is it an incident we're seeing that's different to what we've seen in the past that we haven't been aware of that requires a specific rewording to address something very specific, so for example, if we thought we were looking at something that okay there's a speed here that looks a bit abnormal, why is it? Is it a tampering issue, is it a driver issue, is there something specific about it, is it a particular driver? I think it's, I mean if we've got to rewrite the document every time we see the same process coming through I mean aren't we just repeating the same steps? Aren't we ultimately coming back to the same subject matter of how we manage speed and it's stated fairly clearly already that absolute maximum speed is 100 kilometres an hour, you know follow statutory speed limits, so if we refer to some of the examples you've used where they've been 15 kilometres over an 80 kilometre an hour zone, as you put it maybe a driver input, hasn't that not already been addressed in the documentation that you are to abide by signposted limits and maximum speed is 100 kilometres an hour. What need would there to be to rewrite or readdress the documentation as it stood? Q. What's the threshold for management in 2011 and 2012? A. There is no threshold. … Q. Is it correct that you say it would have to be something unusual to warrant changing the management's way of dealing with speed compliance? A. It would have to be something that we haven't seen previously and haven't dealt with previously to require rewriting a document. You can't imagine a situation, dream up a situation whereby you need to rewrite a document against information you've seen constantly that is consistent with information you've seen constantly that the documents have previously been written around to address the matter at question. Q. I'm not only, when I say revisit, in fairness to you I'm not only saying the rewriting of the document but management's overall approach, in other words, is your system working? A. Of course it is you're addressing, if we're seeing a notice of that nature come in, well we're aware that there's been a speeding issue of some description so if it's got a speed limit in fines first step is address that to deal with the vehicle, part of that first step is dealing with the driver, it's a-- Q. Well first thing is dealing with the vehicle as I understand it? A. Yeah well you've got to-- Q. I'm not suggesting you don't send them off-- A. --well you've got to get the vehicle home to a workshop or into a relevant workshop that's capable of performing the task first and foremost. Q. What about driver behaviour? A. Well again you're talking to the driver it's, as I've said previously, it is either going to be a verbal conversation, "Hey we've got a written warning here for you" which is dealt with by the likes of Benny Karafa(?) and depending on whether it is a situation where it's a driver that's had more than one then I think again as I've previously stated I would be involved to a lesser extent, my brother would be involved if I am not there being Grant Borg and any of - and/or all operation managers relevant state by state depending on where the driver is based, if he is out of Queensland and depending on his location at that given point in time. So in terms of changing the process - not too sure that changing the process is relevant, it is addressing the matter I think is what's relevant and that's what we've done. Q. Right? A. Is what we continue to do." The problem with the questions as posed was that they sought to impose a numerical threshold to the test of reasonableness, something which was entirely incongruent with the statutory regime and an operator's processes, satisfactory or otherwise. To some extent, the second question was broader and might have been an attempt to cure the difficulty with the first. Either way, these questions had the tendency to lead one to hypothesise about whether an operator was required to take steps which were reasonable but which may not have necessarily always achieved the desired result of preventing speeding conduct from occurring altogether or, alternatively, whether all steps taken by an operator were required not only to be reasonable but to also achieve the result of preventing speeding conduct from occurring completely, effectively reducing the individual incidents of excess speed down to zero (or some elusive threshold for that matter). The latter, as opposed to the former, left no scope for judicial moderation. 1. As an example of the line of questioning in which the Prosecution embarked at this point, he was taken to a Hartwigs invoice dated 12 May 2011 (MFI J, Tab 5.8, p.284) which indicated that a particular vehicle's rev parameters were out of the restriction limit. He readily conceded that as a result of this observation by Hartwigs, management had become aware that the operation of the speed limiter device had been affected by human intervention. This, having been considered a fairly severe breach of company policy, resulted in the vehicle being checked for tampering. He said that they had an awareness of the different means by which drivers or individuals outside of the business could alter ECM settings. In the present case, it appeared that someone had altered the chopper wheel setting on the gear box. He responded affirmatively to the question about whether management carried out any further investigations. He added that the driver would have been spoken to (most likely by Mr Bennie Karafa) and most likely received a written warning, but without seeing the specific document referring to it, was unable to confirm this. He rejected the Prosecution's assertion that management's response to this came as a response to a directive rather than as a response to routine maintenance. In fact the Prosecution appropriately conceded later that for two of the heavy vehicles the subject of inquiry, it was apparent that the maintenance records demonstrated detection of evidence of the need for adjustments to the speed limiter devices at a time when it did not relate to any directive or three-strikes warning, the inference being in favour of the Defence (T3.3.2016, 52.31 - 52.35, Mr Borg XXN). Indeed, he was questioned in the same vein about a number of charge and non-charge related events. In all of the instances where documentary evidence may have revealed tampering, he stated that the previously referred to actions (verbal and written warnings) would have been given. Notably, he frankly conceded that in relation to some of the documents shown to him in the witness box, there was no corresponding speed limiter check (or mechanical workshop invoice) for a particular heavy vehicle, on some occasions because the three-strikes notice was not accompanied by a template document for a speed limiter certificate check. He elaborated on why it may have been that a heavy vehicle might not have been sent for a speed limiter check. He stated that the decision may have been made that it was not necessarily required. What was more important, he said, is what was demonstrated previously with other invoices, that operational staff in the workshop at that point in time for that vehicle were conscious of an issue with a particular driver, the details of which he did not have with him in the witness box, and that this was being managed accordingly in line with the company policies regarding speed. It appeared to him from the documents he did have, that a fairly stringent process would have been followed where they would have passed the stage of third and final warnings, and entered the domain of termination of employment, if it was in fact the same driver across the various events and invoices (T3.3.2016, 18.29 - 32.32, Mr Borg XXN); 2. He was questioned about whether information regarding speeding, disclosed by mechanical workshops, would result in dismissal. He stated that, potentially, that would be the result (T3.3.2016, 26.1 - 26.2, Mr Borg XXN). On the issue of whether the integrity of their disciplinary system at that time was such as to expect corresponding warning letters or some sort of disciplinary action on the driver's file, he stated, relevantly, that they did not necessarily always need to terminate one's employment. Matters could be resolved by the "path of least resistance" for the driver in question. The documents shown to him in the witness box, which he stated were almost six years old, suggested to him that his operational staff would have zoomed in on an individual that had been creating an issue and that focus, one way or another, regardless of any file note or written warning, ultimately resulted in that driver no longer being employed with them. He stated that they may have made a note of some description to say that the driver left due to speeding or he may have been given a written warning. He was certain that he would have been spoken to on more than one occasion but without the benefit of the exact driver's details, he was unable to add more. He was aware, from his experience within the organisation (and perhaps unsurprisingly) of "how these individual operate once they're focused on." (T3.3.2016, 33.6 - 33.38, Mr Borg XXN). Much attention was devoted to the circumstances surrounding the termination of one's employment in instances where speeding was in issue. I queried whether an aspect of compliance with the reasonable steps defence was achieved (or, more correctly, best achieved) by the operator's dismissal of an employee. It became clear from Mr Borg's evidence that, documentary records aside, the cessation of one's employment in circumstances where speeding was an issue could have been the result of an employer initiated termination or an employee initiated resignation. In both cases, it was plausible that the cessation of their employment came about due to speeding. If the cessation of one's employment due to so significant a breach of company policy was the ultimate end to be arrived at, it was, in my opinion, inconsequential to focus on the means by which (or by whom) it was brought about; 3. He rejected the proposition that one could have a business practice, but that it may not, of itself, be a reasonable step to prevent speed. He stated that it would be pointless having a business practice that did not offer a reasonable step in the environment in which they operated. The whole point of having documentation, he said, was to create a reasonable step and to deal with issues that arose (T3.3.2016, 36.44 - 36.49, Mr Borg XXN); 4. He stated that one could have a business practice in place which had as its purpose something other than speed compliance, for example, fatigue, mass and loading. His evidence was replete with examples of documents relating to business practices addressing a variety of different factors within the industry (T3.3.2016, 37.4 - 37.8, Mr Borg XXN); and 5. He also rejected the idea that the mere existence of a business practice did not, of itself, mean it could only be for the purpose of speed compliance. He stated that there were specific documents related to speed for that very reason (T3.3.2016, 37.10 - 37.13, Mr Borg XXN).
Consideration
Conclusion
Orders
(3) Accept the pleas of guilty entered by the Fifth Defendant, as operator, in relation to the following four charges brought pursuant to s.69C(1) Road Transport (Safety and Traffic Management) Act 1999 (NSW). A sentence date is to be fixed. Seq No. JL Case No. 1 2012/174416 2 2012/174416 3 2012/174416 4 2012/174416
(4) The following 20 charges are withdrawn and dismissed. Seq No. JL Case No. 1 2012/174445 5 2012/174518 9 2012/168266 30 2012/168769 13 2012/168266 24 2012/168769 38 2012/168769 23 2012/168769 5 2012/168266 9 2012/174767 3 2012/174767 5 2012/176707 22 2012/173227 29 2012/173227 35 2012/173227 12 2012/177268 9 2012/177268 4 2012/175997 4 2012/176093 41 2012/169866
RMS v Dranmore Annexure A FINAL Spreadsheet ####### (35.2 KB, xlsx)
Amendments 28 February 2018 - Minor amendments to formatting errors throughout decision 01 March 2018 - Further minor amendments to correct formatting errors throughout decision Corrected reference to 'Road Transport (Vehicle and Driver Management) Regulation 2005 (NSW) (Repealed)' and subsequent abbreviated references to 'RT(V&DM)Reg'; replaced with 'Road Transport (General) Regulation 2005 (NSW) (Repealed)' and 'RT(G)Reg'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2018
Roads & Maritime Services
Dranmore Pty Ltd & Ors
(1984) 153 CLR 521
(2005) 63 NSWLR 263
(1998) 197 CLR 250
(2010) 239 CLR 531
[2010] HCA 1