Remondis case sparks COR commentary

By: Rob McKay


Bristow notes extent of Chain Of Responsibility ignorance and impending expansion of liability

Remondis case sparks COR commentary
Gillian Bristow says COR awareness must be translated into proper practice

 

Expert legal takes on the Remondis Chain Of Responsibility (COR) case look to be gaining momentum as the industry and its service providers digest the implications.

It promises to be a thoroughly examined sentencing not least because of its rarity but also because of the lessons that can be learnt for all interested parties.

"The case demonstrates that parties in the chain cannot simply assume that other parties will fulfil their chain of responsibility obligations," Cooper Grace Ward Lawyers special counsel Gillian Bristow tells ATN.

"In particular, businesses that make use of heavy vehicles to send or receive goods cannot ‘turn a blind eye’ and leave it to operators to comply with their chain of responsibility obligations; instead, those businesses must implement their own measures to ensure compliance."

Bristow is to speak at an Arthur J Gallagher breakfast presentation in Queensland on September 20 on COR and the implications of the case.

Arthur J Gallagher is urging its transport clients to bring their customers for a lesson on COR.

Bristow also sees general implications from the case that affect both the transport industry and its clients.

"The case also highlights that it is not enough for a party to be aware of their obligations if that awareness is not properly translated into practice," she says.

"Documented policies and procedures, with all the best intentions, mean nothing unless personnel are trained and instructed in those policies and procedures and measures are in place to monitor compliance with those policies and procedures."

Bristow underlines that lessons will become even more important from mid-2018 when the latest COR reforms come into effect.

"Under the reforms, it will no longer be necessary for an on-road offence to be committed before a party in the chain is liable," she tells ATN.

"Instead, a party may be prosecuted because it does not have in place practices that ensure the safety of transport activities related to its operations."

Despite being in force for 12 years, COR cases involving those in the chain beyond trucking are thin on the ground.

 This was made plain by there being only seven cases since 2005 cited in the sentencing document and perhaps two involving non-trucking actors

"The case is significant because there have been relatively few prosecutions of consignors to date – it is often difficult for regulators to assemble the necessary evidence to prosecute parties further removed from the on-road activities of the transport operator," Bristow says.

"In addition, most cases are heard in local courts that are not required to publish their decisions."

She also points to other lessons from how the sentence weight was measured.  

"The aggregate penalty imposed in the Remondis case was high because of the scores of offences that the court was considering," Bristow says.

"One of the difficulties that parties in the chain can encounter is that a systems failure can result in a party being fined numerous times, effectively because multiple offences flow from that failure.

"The court considered this issue and said ‘In this regard, it is contended that despite the large number of offences, all stemmed from a single act of criminality – whereby Remondis as consignor had a flawed compliance system in place.

"The Court has found that although that may be so, there were many ramifications because of that flaw, all the way down the transport chain’.

"Each instance of overloading was therefore treated as a separate offence and the company was penalised accordingly."

Details of the Arthur J Gallagher event can be gained by emailing Richard.banks@ajg.com.au or calling 0418 736 671.

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