News & Insights

As recently highlighted in the high-profile case of Connect Logistics, it is not just the decision-makers or directors of an organisation whose heads are on the chopping block. Everyday Aussies who are schedulers, vehicle operators, and managers can be held accountable by the National Heavy Vehicle Regulator (NHVR) who is ramping up their enforcement activity and resources. In April this year, we produced an insight that deep dives into the Chain of Responsibility (COR).

Understandably, this has made many in the industry cautious, forcing an investment of significant resources to ensure compliance. Most notably, the spotlight continues to remain on managing fatigue and ensuring that adequate safety systems are properly documented to demonstrate and map compliance.

As part of exercising due diligence, decision makers must maintain an up to date knowledge of recognised safety hazards and risks. In this article, we highlight some of the most recent enforcement outcomes and lessons that we can take from these.

Connect Logistics

In April 2020, four police officers were killed in Victoria when a truck collided with multiple stationary vehicles. Following an investigation, the NHVR commenced prosecution proceedings:

• The driver of the truck suffered from substance abuse and fatigue, and the medical evidence identified the driver as being under the influence of methamphetamine which was linked to the crash;
• 40% of Connect Logistics’ driving shifts had at least one fatigue-related breach – in other words, there was a pattern of conduct;
• The supervisor, Simiona Tuteru (Tuteru), had checked and endorsed over 500 of the 800 offending shifts;
• Tuteru failed to report, action, or escalate the noted breaches for disciplinary action;
• A major client for Connect Logistics raised critical Non-Conformance Reports for repeated fatigue breaches; and
• The Court accepted that there was a practice of completing falsified time sheets which were approved by senior management.

The Sentences

• Connect Logistics was fined $2.8 million, which was discounted to $2.31 million on account of an early plea of guilty; and was prohibited from conducting any transport activities for 12 months.
• The Managing Director, Corey Matthews, was fined $22,500 and subject to a supervisor intervention order to undertake further education; and
• Cris Large, the National Operations Manager was sentenced to 3 years imprisonment and banned from working in the transport industry for 12 months after his release;
• The driver, Mohinder Singh was sentenced to 18 years imprisonment; and
• Supervisor Simiona Tuteru was sentenced to a 3-year community corrections order with 200 hours of unpaid community service.

Foley Contracting Pty Ltd

On 6 August 2020, a truck rolled due to a driver error. An investigation was conducted by the Queensland Department of Transport and Main Roads which uncovered that 193 fatigue-related breaches were committed between July and August 2020 by the company. Although fatigue did not cause the truck rollover, the investigation uncovered other issues including:

• drivers working excessive hours;
• falsification of rest stop records;
• management being aware of the above; and
• no policies, procedures, or safety management system in place.

Foley Contracting pleaded guilty to 37 offences, including that the company breached its primary safety duty by failing to ensure its drivers did not work in excess of their maximum hours.

The Sentence

• Foley Contracting received a $1.2 million fine.

Birrell

In February 2019 a 67-year-old man, Mr Blacker, died when his vehicle which was being loaded onto the tilt tray of a tow truck, rolled off and crushed him. The owner/operator of the tow truck company, Mr Birrell, was loading the vehicle onto the tray, left it suspended and walked away. Mr Blacker walked behind the tow truck when the bull bar of his suspended vehicle gave way.

Mr. Birrell was charged with a Category 1 offence (the most serious) and alleged by NHVR to have been reckless as to the risk of death or serious injury or illness but was originally found not guilty.

After a successful appeal, the retrial found Mr Birrell breached his primary safety duty, noting that the operator pleaded guilty.

The Sentence

• The tow truck operator was sentenced to 10 months imprisonment, reduced to 6 months because he pleaded guilty, with the entire sentence suspended conditionally on good behaviour for 2 years.
• The tow truck operator was suspended from any transport activities for 12 months.

Of note was the Court’s observation that the possibility of the hazard and risk combining to cause death, not the probability of it, ought to have loomed large in the mind of the operator.

Lessons to learn

It is clear that all parties in the COR will be held liable by the NHVR for breaches, and that they will leave no stone unturned. No party in the COR is safe from criminal liability when an incident occurs, particularly directors.

Managers, supervisors, and schedulers must be aware of and stay up to date with relevant safety issues, and communicate regularly to effectively combat fatigue management, drugs and alcohol and other safety risks on a constant and consistent basis.

Managers and supervisors must be aware of the language they use when communicating with schedulers and drivers to not encourage drivers to get behind the wheel when it is unsafe to do so. Effective risk assessment and management practices require a whole of organisation approach and can be the difference between being out of business, paying large fines or worse, imprisonment for individuals.

Seeking legal advice early to ensure your safety management systems are compliant in an age of increasing audit activity by the NHVR is critical, not to mention the key difference such advice can make in keeping your business on the road when confronted with an incident.

Contact Macpherson Kelley

If the COR applies to you and you need advice on the operation of the regime and compliance or find that you are subjected to a crisis, our Safety experts at Macpherson Kelley are well-placed to assist. Contact our team to find out more.

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The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.