Endycott notes operators, customers get off lightly on COR

By: Steve Skinner


NSW compliance head Paul Endycott points out different punishments for truck drivers versus operators and customers after fatal accidents

Endycott notes operators, customers get off lightly on COR
A dog trailer in what used to be the yard of South Penrith Sand and Soil

 

A tragic case highlights the differing treatments of truck drivers found to be at fault in fatal crashes, and those higher up the chain of responsibility, the head of heavy vehicle compliance in New South Wales says.

Paul Endycott is referring to a fatal 2010 accident involving Sydney truck and dog company South Penrith Sand and Soil, which no longer exists.

As we recently reported,  that accident was used as a case study in a recent submission to a national review of chain of responsibility (COR) law by Transport for NSW, which takes in that state’s heavy vehicle regulator, Roads and Maritime Services (RMS).

The driver involved in the accident which killed a cyclist was sentenced to 10 years in jail with a non-parole period of seven years, after pleading guilty to manslaughter and dangerous driving causing grievous bodily harm.

The court found his driving ability had been impaired by a combination of cannabis toxicity and fatigue. He lost an appeal against the sentence in December last year.

Meanwhile in June last year the NSW Supreme Court found that South Penrith had "simply ignored" driving hours regulations for many years. Despite that, the company and its prinicipal director were fined less than $90,000.

The judge said none of the charges before him directly related to the fatal accident, but the  accident led to an RMS investigation.

"It was immediately apparent to the RMS Audit, and South Penrith and the other defendants agreed, that there were no systems or practices in place which addressed any issue relating to fatigue management for the drivers of the Company’s vehicles," the judge said.

Elsewhere the judge noted that until an earlier court case where half the charges were thrown out, "the prosecution persisted, unreasonably in my assessment, in pursuing a range of charges which were not open to it".

And although he was passing sentence on a host of individual road safety offences, he said he was obliged to adhere to the "principle of totality", to ensure that the fines "reflect the criminality involved".

RMS general manager of heavy vehicle compliance, Paul Endycott, led the investigation into South Penrith.

"The South Penrith Sand and Soil case shows the contrast between long jail sentences for drivers at fault in fatal crashes, and consequences for the operators and customers involved," he says.

Endycott says the current complex and prescriptive COR law led to the light penalty against the company and its owner.

"There were thousands of fatigue breaches," he says. "We interviewed all the drivers and protected them under the law by directing them to answer questions.

"I asked for the worst of the breaches to be progressed after the company appealed to the District Court saying a number of charges were duplicitous. 

"The complexity of the law led to this situation.

"If we had been able to charge them once, under a breach of a general duty to provide safety and include the thousands of incidents in the particulars of the charge, then the court could look at one charge and appropriately deliver a suitable sentence in response.

"But what they have to do is look at each incident and then deal with them in totality.

"Judges and magistrates are compelled to get bogged down in the fine detail, and can lose sight of the overall seriousness of the dangerous company behaviour.

"Things are just back to front."

Endycott says his investigators hear time and again from those higher in the chain ‘We didn’t know they were speeding or driving fatigued’, and says in most cases that’s because "they never bothered to ensure basic compliance". 

"We must continue with this work to ensure companies are not attempting to gain a criminal commercial advantage over compliant companies by breaking the law."

For more on the South Penrith Sand and Soil case check out the June issue of ATN.

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