Court dismisses chain of responsibility case against Graincorp, raising doubts on future prosecutions
By Brad Gardner | November 16, 2009
The ability of heavy vehicle enforcers to prosecute companies for accepting overloaded trucks has been thrown into doubt by a NSW court ruling.
The Supreme Court has dismissed an appeal by the Roads and Traffic Authority (RTA) against Graincorp for breaching chain of responsibility laws.
Graincorp faced fines of $18.23 million and allegations of 332 mass loading breaches for accepting overloaded trucks in 2005.
The Burwood Local Court ruled in the consignor’s favour in May last year, but the RTA told the Supreme Court that Graincorp’s policy of warning rather than turning away overloaded trucks was insufficient.
However, Judge Peter Hall says its actions may have prevented the company from being prosecuted.
He accepted Graincorp’s claim that refusing access to the trucks would contravene another law.
“The likely result of the defendant refusing to accept a load from a vehicle in breach of a mass requirement, the defendant argued, would have been to force drivers of overloaded vehicles back onto the road thereby exposing the defendant to liability under…the [Road Transport (General)] Act,” Hall says.
“…the defendant took into consideration the problem of potential liability under the provisions…of the Act.”
Hall also rejected assertions by the RTA that Graincorp acted negligently by taking inadequate or insufficient steps to reduce the risk of a loading breach.
He ruled that the consignor had taken action at a senior executive and managerial level to consider the provisions it was obligated to follow.
“A person who is subject to a particular duty of care may be required to take certain protective or precautionary steps to avert or minimise the risk of certain events occurring,” Hall says.
“The fact that such measures may not ultimately prove to be effective does not, of itself, establish negligence.”
Hall also rejected the claim that Graincorp induced drivers to breach mass requirements because the company accepted overloaded goods from the same truck more than once.
He ruled that a driver’s decision to ignore a warning or act contrary to directions did not mean Griancorp encouraged breaches.
Hall upheld the original ruling that found Graincorp’s policy of collecting data, issuing written warnings and providing information to the RTA on request was an acceptable means of discouraging overloading breaches.
The ruling brought an end to a long and publicised battle between Graincorp and the RTA, which earlier this year argued it was “committed” to prosecuting the consignor.
Hall gave the RTA two weeks to decide whether to appeal an order to pay costs.
“In the event that no submissions are made within that time, then the plaintiff is ordered to pay the defendant’s costs,” he says, without revealing the figure.