Endycott (Roads and Maritime Services) v Rapid Access Australia Pty Ltd [2012] NSWSC 1132

Supreme Court New South Wales

Medium Neutral Citation: Endycott (Roads and Maritime Services) v Rapid Access Australia Pty Ltd [2012] NSWSC 1132 Hearing dates: 3 - 6, 11, 13 September 2012 Decision date: 13 September 2012 Before: Grove AJ Decision: 1) Rapid Access Australia Pty Ltd be fined the sum of $8,250. Catchwords: SENTENCE - liability as a consignee Legislation Cited: Road Transport (General) Act 2005 Category: Sentence Parties: Paul Harold Endycott (Roads and Maritime Services) (Prosecutor) Rapid Access Australia Pty Ltd (Defendant) Representation: Counsel: Ms P. McDonald SC, Mr P. Knowles (Prosecutor) Mr P. Strickland SC (Defendant) Solicitors: Henry Davis York (Prosecutor) Curwoods Lawyers (Defendant) File Number(s): 2011/75005

REMARKS ON SENTENCE 1HIS HONOUR: These proceedings are brought against the Defendant, Rapid Transport Australia Pty Ltd pursuant to the Road Transport (General) Act 2005 ("the Act"). For present purposes I will refer to the Defendant as Rapid. 2Rapid has, through counsel, pleaded guilty to an amended summons charging a single offence of liability as a consignee pursuant to s 58 of the Act in relation to an incident which occurred on 5 March 2009. For the purposes of sentence I have been provided with a very lengthy statement of facts not all of which are applicable to Rapid, but it is necessary to an extent to look at the activities of others in order to understand the context of the charge brought against this defendant. 3It is said that Rapid is liable pursuant to the establishment by the statute of a chain of responsibility. Responsibility in that context needs to be understood as referring apparently not to culpability but to a chain of liability. Indeed the various provisions in the Act that create offences which can be committed by people involved in the so-called 'chain' talk of liability. 4The incident giving rise to the prosecution occurred on the aforementioned date. On that date there was a contract between Rapid and its customer, Bulga Coal Management Pty Limited which involved the collection of a large elevated work platform. This had an extendable boom which would reach as far as 135 feet. The evidence seems to indicate that this implement is the largest of its kind. It was certainly the largest of its kind operated by Rapid. After the hire to the coal management company, Rapid made arrangements for its retrieval by a carrying contractor. Arrangements were made with one of the corporations operating under the umbrella which I will refer to generally for present purposes as Griffiths Transport. Griffiths driver, a Mr Riley took a combination consisting of a prime mover and trailer to the mine site. He operated the EWP to place it on the trailer and commenced the journey from the mine site intending to arrive at Rapid's yard. A permit existed allowing Mr Riley to operate at over normal height, the limitation being 5 metres. It is obvious that the load of the EWP exceeded that 5 metres as it passed under bridge near the township of Maitland and collided with it, thereby destroying the bridge. The lowest clearance under the bridge was something between 0.3 and 0.4 metres over the 5 metre limit, hence my observation that the load obviously exceeded 5 metres. 5I am required by the appropriate legislation to take into account various matters. I do take into account that the accident itself created an appreciable risk of harm to public safety and that there was a serious risk of harm to the road infrastructure. In fact, the overbridge was destroyed and it took some two years to restore it at a cost of something in excess of $1.7 million. In addition, I take into account that there was a serious risk of increased traffic congestion, not only at the time of the incident and shortly thereafter, but in relation to the operations that were necessary to restore the bridge. Equally obviously, I must take into account that there was not only a serious risk of diminished public amenity, but a risk that fell due in the sense that for about two years there was not an available pedestrian overbridge until the one destroyed in the collision was replaced. 6I have observed that Rapid's liability emerges from its status as the consignee of the EWP. A number of matters are relied upon by the Prosecutor as matters touching upon the culpability of Rapid. It is said that it did not make inquiries of the carrier or anybody at this business in relation to the competence and experience of the driver who was allocated for the particular job. Indeed it is apparent that at no time until after the incident was Rapid even aware of the identity of the driver. It is said that Rapid ought to have made arrangements with the carrier to make sure that persons of appropriate qualification or training would make the collection which gave rise to this accident. 7The relatively inactive role of Rapid in the facts surrounding the accident do not exclude its liability. In an Affidavit sworn by Mr Munro, the Managing Director of Rapid, Mr Munro accepts his responsibility for the breach of the dimensions requirement, that is to say that the load exceeded 5 metres, although it is obvious that he did not have actual knowledge of what was going on at the time. 8It seems to me that although the statute makes provision for the imposition of wide-ranging liability the assessment of appropriate penalty would, as in any criminal prosecution, require an assessment of the culpability of the person, or in this case, the corporation prosecuted. 9Rapid has been in business since 1998 and in that time it has paid one fine for a mass axle breach. I regard its record as relatively good and that background offence being comparatively minor. It does not, in my view, contribute great weight to depriving Rapid of mitigation to which it might otherwise be entitled. 10In the proceedings a consent order was made for a contribution of $300,000 by Rapid as road compensation, that is to say, a contribution towards the cost of rebuilding the damaged bridge. It is accepted by the prosecution that by reason of statutory provisions as to sentence, that can be taken into account by way of reparation, indicating remorse for the offence. To speak of remorse in the case of a corporation may be somewhat artificial. Nevertheless, I regard it as a factor of mitigation which I take into account. Senior Counsel for Rapid submitted that I should further take that payment into account as extra curial punishment. In my view, it does not amount to such punishment and there is no present need for me to elaborate upon the reasons for that conclusion. 11It is an agreed circumstance that the plea of guilty was offered by Rapid at the very earliest opportunity and it is conceded by the prosecutor that any assessment of penalty should be reduced by 25 percent in order to mark that plea. Reference was made to well known authority which deals with discounts for the practical value to the community of early pleas of guilty. In accordance with the agreement, therefore, I propose to apply that discount. 12As I have said, the agreed facts are lengthy but it does not seem to me that it is necessary to recite them all for the limited purpose of imposing a penalty upon this defendant reflecting its plea of guilty. 13A submission was made by the prosecutor that the offence lies in the high range of offending. In my view that is not an acceptable submission. The reason I reject it is, as I have already said, I regard the culpability of the consignee in the circumstances as less than that. It is true that it is acknowledged that Rapid offered to its carrier contractor instruction and training for the carrier's drivers. That offer was not taken up and Rapid did not seek to enforce it. Hence, it was left in the situation that having not done so it was ignorant of the capacity and experience of the person who actually performed the task on the day in question. 14The final thing to which I will refer is the evidence of Mr Munro in his affidavit as to the steps which have been taken since March 2009 in relation to the supervision and enforcement of the conduct of the contractors with whom it deals in order to transport its equipment. In fact, I am told that proceedings had been commenced even before the accident, but regrettably they had not come to fruition. Nevertheless, without reciting what can be read in Mr Munro's affidavit, I would conclude that what has been done manifests every reasonable response by way of rehabilitative conduct on the part of a corporation in order to avoid the risks involved. Of course, as the prosecutor pointed out, it was little short of miraculous that, in an accident such as this, no one sustained very serious injury. The evidence during the hearing relating to other defendants, and in respect of the material in the tender bundle, confirms this. Nevertheless, Rapid must bear, as Mr Munro acknowledges, an appropriate penalty for its participation. I have taken into account the matters which have been raised by counsel and set out in the written submissions by the prosecutor. 15In my view, in the whole of the circumstances, an appropriate penalty as against an available maximum of 250 penalty units, would be 100 penalty units. I would discount that by 25 percent, so that the imposition in fact will be 75 penalty units. A penalty unit applicable to this case is $110. 16I order that Rapid Access Australia Pty Ltd be fined the sum of $8,250.