Supreme Court New South Wales Medium Neutral Citation: Endycott (Roads and Maritime Services) v Griffiths Garage Pty Limited [2012] NSWSC 1131 Hearing dates: 3 - 6, 11, 13 September 2012 Decision date: 13 September 2012 Before: Grove AJ Decision: 1) Griffiths Garage Pty Limited be fined the sum of $16,500. Catchwords: SENTENCE - Heavy vehicle operator - overheight load - collision with pedestrian bridge - statutory chain of liability - plea of guilty - penalty Legislation Cited: Road Transport (General) Act 2005 Category: Sentence Parties: Paul Harold Endycott (Roads and Maritime Services) (Prosecutor) Griffiths Garage Pty Limited (Defendant) Representation: Counsel: Ms P. McDonald SC, Mr P. Knowles (Prosecutor) Mr R. Cavanagh SC, Mr A Bowen (Defendant) Solicitors: Henry Davis York (Prosecutor) Gillis Delaney Lawyers (Defendant) File Number(s): 2011/75070 REMARKS ON SENTENCE 1HIS HONOUR: The issue before the Court is the imposition of penalty for an offence by the company Griffiths Garage Pty Limited (Griffiths Garage) contrary to the Road Transport (General) Act 2005 (the Act). The Act provides for what is called a 'chain of responsibility'. As I have mentioned in other allied proceedings, a responsibility in that sense does not seem to focus precisely upon culpability but rather upon liability, which is the word used in the offence creating sections within the statute just mentioned. 2Griffiths Garage has pleaded guilty to an amended summons which charges it, as an operator, with breach of what is described as a 'dimensions requirement'. In short, it is alleged that the dimensions of a combination consisting of a prime mover, trailer and load exceeded a permitted 5 metres. The evidence in the proceedings shows that the height of the load must have been at least 300 millimetres or higher than the permitted 5 metres. Although I deal only at the moment with Griffiths Garage and its responsibility, it is necessary to make reference to some general circumstances in order to understand what is involved in the charge. 3A company called Rapid Access Australia Pty Ltd (Rapid Access) was in the business of hiring equipment. Included amongst the available equipment was a very large elevated work platform which had a boom capable of being extended up to 135 feet. Evidence shows that this very large implement was the largest in the fleet of implements available from Rapid Access. By contract with the company operating the Bulga mine, that implement was leased for a period of about two weeks. 4At the end of the hire it was necessary for the implement to be collected and it was intended that it be returned to the Rapid Access yard. For that purpose Rapid Access contracted with the current defendant to arrange for the collection and transport of the EWP. This was done on the 5 March 2009. 5The combination was driven by a man called Matthew Riley who was an employee of the current defendant. He went to the mine site where he picked up the EWP. It was on the journey intended to terminate at the Rapid Access yard that the load collided with a pedestrian overbridge near the township of Maitland. The consequence of the collision was that the bridge was demolished. Evidence shows that although there was considerable property damage, including significant damage to the bridge, it does not appear that any person sustained significant injuries. That that was the case has been described as a 'near miracle' and I would agree with that observation. 6Before I turn to some of the matters touching on my assessment of penalty, it is necessary to deal with a disputed question of fact. It is asserted by the Prosecution that, prior to departure from the mine site, Mr Riley, the driver, telephoned Mr Maytom for whose conduct Griffiths Garage accepts it is responsible. The reason for that circumlocution is that, apparently in the company structures, Mr Maytom was in fact employed by a different entity from that which employed Mr Riley. Whatever the circumstances were, it is of no consequence having regard to the concession made by Senior Counsel for the defendant. 7In an affidavit, Mr Riley asserted that he had told Mr Maytom that he was not sure whether he was under or over, that is to say, referring to the 5 metre limit which his permit allowed. He contended that Mr Maytom had said words to the effect that, 'We need this machine back. Just keep going. Be careful of the low bridge in East Maitland.' 8In the course of the proceedings Mr Maytom was called and he testified to a different version of that conversation. His evidence was that Mr Riley said he was having trouble with the machine and Mr Maytom inquired as to what sort of trouble he was having. He continued his evidence in these terms: He said he was having trouble with the basket, tucking the basket around. We talked for a couple of minutes and I said to him, 'Matt, you've got to get it right. You have some bridges on the way back and before I can have someone there, I am about an hour, and hour and a half away, can you go back to Bulga and see your contact person and have a talk to do him to see if he can get your basket turned around'. 'Bulga' is of course a reference to the mine on whose site the implement had been collected. 9The disputed versions contradict each other in an obvious way. There is other evidence, however, which is of some assistance in resolving the dispute. Mr Manderson, the Branch Manager of Rapid Access, the hirers of the implement, testified that he had a conversation with Mr Maytom in which Mr Maytom had told him that he had been contacted by the driver. Mr Manderson's evidence went on in these terms: Q. What else did Mr Maytom say after that? A. Matt Riley, driver had concerns about being over height. Q. Did Mr Maitland say anything else to you in that conversation? And ultimately his answer was: Said that, 'If you feel that you're safe and not too far over height drive home safely without hitting bridges. 10The conclusion that I reach is that, whilst I am unable to be satisfied beyond reasonable doubt as to the exact content of communication between Mr Riley and Mr Maytom, I am satisfied by reason of my reliance upon Mr Manderson's evidence that the issue of possible over-height was canvassed between Mr Riley and Mr Maytom. My conclusion extends no further than that. However, the consequence of that finding is that Griffiths Garage, through its agent Mr Maytom, was on notice that this journey had potential for accident of the kind which in fact took place. It was not disputed that it was common knowledge that on a journey from the mine site to the Rapid Access yard it was necessary to pass under a number of bridges. 11There are a number of circumstances which I am obliged by the statute to take into account, and I do so. There was an appreciable risk of harm to public safety. There was also, as is self evident, a serious risk of harm to road infrastructure. I have already mentioned that the bridge was demolished. The evidence is that it was replaced and it is asserted by the Prosecutor that the cost of restoration was in the order of $1.7 million. 12It is convenient to mention, at this stage, that by consent, the defendant, Griffiths Garages, has agreed to make a road compensation payment in the sum of $1 million towards that restoration. That is a payment which is available to be taken into account as an indication of remorse, and I do so. 13I continue with the matters that I am obliged to take into account. 14The next matter which I take into account is that there was a serious risk of increased traffic congestion. That risk fell due not only in relation to the aftermath of the events, but fairly obviously would have occurred to some extent in later times when activity was required to restore the demolished overbridge. 15Next, there was a serious risk of the diminished public amenity. Indeed, once again, as a result of the collision the pedestrian overbridge was, until restoration, not available to the citizens who needed to avail themselves of crossing the New England Highway, known locally as Les Darcy Drive, but obviously a very busy major road in the State of New South Wales. 16The culpability of the defendant is asserted to focus upon a number of acts and omissions on the part of the defendant. I have already made some reference to its failure to respond to the call by the driver, Mr Riley. I accept the assertion by the Prosecutor that Griffiths Garage as the owner and the employer of the driver had ultimate control over the combination. A consequence of that finding is that it was within its powers and authorities to give the driver necessary instructions, including instructions which would have been relevant at the time that the suspected over-height was communicated to it. 17There are other circumstances which in my view contribute towards the actual culpability of the defendant. It knew that Mr Riley was not the regular driver of the combination. The evidence shows that his usual task was to drive what is described as a tilt tray truck. That is not, as I understand it, an articulated combination and it is notorious that that would be quite different from the sort of combination that he was driving on this day. I do not suggest that Mr Riley did not have the appropriate licenses in order to drive the combination, but his experience was something of which the defendant ought to have been aware. 18The implement was, as I have indicated, particularly large and that seems to me to convey a requirement that care be taken in relation to persons being required to transport such an item. 19Evidence which I accept shows that Rapid Access had made offers to Griffiths Garage to make available to its staff, for the purpose of training and experiencing drivers of the carrying company in tasks such as the one that was engaged upon on the 5 March 2009 when the accident occurred. Failure of the company to respond to that offer is a factor for which inflates, to a marked degree, its culpability. 20The final matter to which I refer in relation to culpability is the simple failure to provide the driver with an appropriate measuring device so that he could check at the site where he made the pick up whether or not he was over height. He had neither tape measure, measuring stick or anything else with which to make an accurate estimate. Evidence during the hearing shows that he relied simply upon an eyesight check and knowledge as to what the height of his prime mover cabin happened to be. 21As against those matters of culpability there are items in favour of the defendant. It is common ground that the plea of guilty was entered at the earliest opportunity and it is accepted by the Prosecutor that any assessment of penalty that I make should be reduced by 25 percent for what is commonly referred to the utilitarian value of that plea. 22I have already mentioned the payment of road compensation and the indication of remorse that is conveyed by that. This corporation has been in business since 1982 and has no prior convictions. That is obviously a record of which the corporation can be rightly proud. 23A matter of particular significance in relation to sentence assessment is what is referred to in more conventional criminal proceedings as rehabilitation. This is manifest in a statement tendered on the sentencing proceedings dated today by Mr John Griffiths who has for many years been a director of Griffiths Garage Pty Limited. Although at the time of the accident he had ceased in that role, it appears with some company restructure he has resumed his directorship. What is significant is that his statement and the annexures thereto reveal that considerable and extensive steps have been taken to ensure the experience and qualifications of any employees who are required to undertake tasks, such as the one that led to the accident on this day. So far as I can gauge from that material that combination of steps that have been taken represents all that would be reasonably required in the whole of the circumstances. 24Although I take all these matters, which are of some significance in mitigation, into account it has to be born in mind that in terms of elevated culpability the operator is guilty of a severe breach of the statutory requirements. It was acknowledged that it would be open to be found that the offence was in the high range of offences of this nature. I make such a finding. 25Pursuant to the statutory provisions, the maximum penalty is to be reflected in 250 penalty units. The applicable penalty unit is $110. In my view, despite the matters of mitigation, the seriousness of the offending is such that an appropriate assessment of penalty would be 200 penalty units. However, having regard to the discount accepted as available for the early plea, I reduce that by 25 percent to 150 penalty units. 26I order that Griffiths Garage be fined the sum of $16,500. ********** 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: 25 September 2012