The recent case of Environment Protection Authority v Hill; Environment Protection Authority v Stockwell International Pty Ltd  NSWLEC 72, illustrates the importance of developing and adhering to strict work procedures when transporting dangerous goods.
Stockwell International and its subcontractor driver, Mr Hill, were responsible for transporting 16,066 kilograms of expandable polymeric beads (a flammable and classified dangerous good) from Port Botany to Smithfield, New South Wales. Stockwell transported the goods to Botany and then contacted Mr Hill, an employee of NDS Transport, to arrange delivery of the goods to Smithfield.
Mr Hill used a vehicle owned by and registered to NDS Transport to transport the beads. Unbeknownst to Stockwell, neither Mr Hill nor the vehicle were licenced to transport dangerous goods. Mr Hill drove the goods through tunnels in which dangerous goods were prohibited. These breaches came to the attention of authorities after Mr Hill's vehicle was stopped at a heavy vehicle checking station on the M5 Motorway at Kingsgrove.
Stockwell and Mr Hill both pleaded guilty to the offence of failing to ensure that dangerous goods were transported by road in a safe manner, contrary to section 9 of the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW) (DG Act).
The DG Act imposes positive and onerous obligations on each party in the chain of responsibility to ensure that dangerous goods are transported in a way that prevents actual harm, promotes public safety and protects property and the environment. Comparable legislation applies in other Australian states. As the effectiveness of the regulatory scheme depends upon compliance by all parties involved, Stockwell's culpability could not be reduced by reference to the conduct of others in the chain.
Stockwell's failure to ensure the vehicle carried proper transport documents, emergency information, placards indicating the carriage of dangerous goods and safety equipment increased the risk of harm to the public in the event of a road accident, fire, leak or spill.
Factors that increased the seriousness of Stockwell's conduct included that:
- its procedures for handling dangerous goods were manifestly inadequate as it did not have a system for checking whether subcontractors were appropriately licensed and had no specific policies for the transport of dangerous goods;
- the offence exposed the public and environment to potential serious harm that was reasonably foreseeable; and
- Stockwell had control over the causes that gave rise to the offence but failed to take the practical measures necessary to prevent the offence.
The Court concluded that the offending was at the high end of the moderate range of 'objective seriousness'. A penalty of $120,000 was considered appropriate given the substantial failure in Stockwell's systems. This penalty was reduced by 30% to $84,000 to reflect the company's early guilty plea and other mitigating factors such as its good character, low risk of reoffending, remorse and cooperation with investigations.
MR HILL'S PENALTY
Mr Hill was considered significantly less culpable than Stockwell.
The Court found that it was the obligation of NDS Transport, not Mr Hill himself, to provide complying documentation, placards, signage and fire extinguishers.
Further, Mr Hill was unaware he was to be carrying dangerous goods until the vehicle was being loaded. The Court accepted that this placed him in a difficult position, as refusing to drive the vehicle might jeopardise his employer's relationship with Stockwell. Nevertheless, his decision to load and drive the vehicle with unplacarded dangerous goods through prohibited tunnels was within his control. The Court found Mr Hill should have refused to drive the vehicle when he realised it was to be loaded with dangerous goods.
Mr Hill's offending was found to be at the low end of 'objective seriousness'. A penalty of $4,000 was considered appropriate but was reduced by 30% to $2,800 due to mitigating factors.
LESSONS TO BE LEARNED
This case demonstrates that all parties in the chain of responsibility must be vigilant when transporting dangerous goods.
Parties in the chain need to implement strict practices and procedures to discharge their dangerous goods obligations. These practices and procedures should include:
- a system for checking that drivers and vehicles are licensed to carry dangerous goods; and
- training and instructions to drivers to ensure the safe transportation of dangerous goods.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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