A recent decision in the New South Wales Supreme Court in which a series of fines were issued for breaches of Chain of Responsibility (COR) fatigue laws has demonstrated the increasingly wide reach of COR prosecutions.
Not only were fines issued to the company but also to the directors and employees of the company personally.
In the judgment1 of Justice Garling handed down on 27 June 2014, the Court fined South Penrith Sand & Soil Pty Ltd (SPSS), its owners and directors (Peter John Spiteri and Tienie Spiteri) and also Jason Roberts who was employed as the company scheduler.
Facts
In early 2010, two SPSS trucks were involved in major road accidents, one on the M4 Motorway and the other on the M7 Motorway. As a consequence of those accidents the Roads and Maritime Services NSW (RMS) commenced an investigation into the business practices of the company. This investigation centred on fatigue management, reasonable working hours and the business practices in this area generally.
The investigation uncovered that there were no systems or practices in place addressing fatigue management for the Company’s drivers nor practices regulating driving hours by reference to the reasonable driving hours prescribed by law. It appeared that the company (who primarily transported quarry products) scheduled jobs purely in response to commercial considerations, rather than taking into account safe working practices as required by the legislation.
Multiple Fines
Of particular interest in this case were the fines issued to Mr Roberts for breaches of section 50 of the Road Transport (General) Act 2005 (NSW) which sets out the duties of Schedulers to take all reasonable steps to ensure drivers do not drive while impaired by fatigue and/or in breach of their “work and rest hours option”.
Whilst the individual amounts of the fines to Mr Roberts paled in comparison to those issued to the Company and the directors, he was issued with separate fines for each breach identified during the investigation period as well as ordered to pay the costs of the prosecutor in relation to the proceeding brought against him.
The sting in the tail of such prosecutions which transport operators often fail to consider (apart from substantial costs orders) is the cumulative effect of fines which are often issued for each individual breach rather than for the behaviour as a whole. When considered together the sum of these fines can be substantial.
In this instance, apart from costs orders, Garling J handed out:
- 8 fines to the company totalling $42,900;
- a total of 20 fines to the two directors totalling $40,800; and
- 12 fines to the Scheduler totalling $5,050
Fortunately, the conduct the subject of the charges spanned the period of just one month.
In handing down his decision, Justice Garling took account of several mitigating factors including the early adoption of guilty pleas by the defendants as well as steps taken by the company since the investigation to make the business compliant with its COR obligations.
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