Directors prosecuted in fatal rollover case

By: Steve Skinner


In a precedent-setting case an importer and two directors have been fined for breaching chain of responsibility on load restraint over a truck crash which killed a motorist

Directors prosecuted in fatal rollover case
The accident scene at Liverpool in 2012.

 

In June 2012, a young father was killed at one of the busiest intersections in Australia when a truck and its loaded container rolled on top of his car.

The 19 tonnes of building products – which had not been properly restrained when loaded inside the container in China – appear to have shifted as the truck rounded a sweeping corner from the Hume Highway onto the Cumberland Highway at Liverpool in Sydney’s south-west.

The composite timber-substitute boards were wrapped in plastic inside a steel frame.

But neither the boards nor the frame had straps over them; there was no blocking between the frame and the front of the container; and both dunnage and chocking were inadequate, it was later concluded.

The deceased 33-year-old man’s Toyota Camry was squashed flat as he waited at lights on the opposite side of the road.

The 45 year-old truck driver was not injured in the crash, nor was he charged with any offences.

More than three years later a court case on the tragic rollover, focusing on load restraint, has concluded.

Melbourne-based fencing, decking and cladding supplier Futurewood Pty Ltd was fined $24,750 and its two directors – Gilbert John Major and David Robert Elms – were fined a little over $4,000 each.

The defendants had to pay $170,000 in costs to NSW Roads and Maritime Services (RMS), which brought the prosecution against it.

The case highlights a huge issue for container carrier companies and their drivers who can’t open security seals – you can’t assume that the goods inside have been properly restrained at their loading point overseas.

And in case consignors are in any doubt, the prosecution sends a clear message that they are obliged under Australian transport law to make sure their imported goods can travel safely on Australian roads.

That’s the view of Hicksons Lawyers partner Philip Cowdery, who acted for RMS in the case.

 

PENALTY NEAR THE TOP – FOR THE TIME BEING 

Last month in Sydney’s Downing Centre Local Court, Magistrate Lisa Stapleton delivered an extempore (verbal) judgement on the Futurewood case.

No written reasons were provided.

"Her Honour was satisfied that the shifting of the load was imminent or had commenced at the time the heavy vehicle was turning onto the Cumberland Highway," says a Hicksons account of her comments.

"Her Honour acknowledged the steps taken by the defendants since the offence had occurred, including changing the packing method of containers, decreasing the size of gaps, improving the chocking system, minimising slippage within the container by the use of different materials, and creating a checklist for packing containers. 

"However, she noted that the defendants had still not had the new system certified by an appropriately qualified engineer."

Hicksons noted that the magistrate found the only mitigating factor for sentencing was that each of the defendants had no prior offence history.

"Her Honour found that the offending was close to the worst case for offences of this type," says the law firm.

The penalties were near the maximum under the current chain of responsibility law.

However they are extremely low compared with those which could come into play under proposed changes to chain of responsibility laws, which would bring penalties more into line with current work health and safety (WHS) legislation.

As a National Transport Commission discussion paper pointed out in July, maximum penalties for risking someone’s life under WHS law include five years imprisonment and fines of up to $600,000 for an individual conducting a business; and a $3 million fine for a company.

Owner//Driver sent Futurewood a copy of the Hicksons account of its sentencing with a request for comment, but the company declined.

Check out the full feature on the case in the December issue of Owner//Driver.

 

You can also follow our updates by liking us on Facebook