Although not a Chain of Responsibility (CoR) case, Henry v CSBP Ltd [2017] WADC 1 is an excellent example of the importance of a properly implemented safety induction and compliance program in defending any claim for safety breach.

This case relates to a liquid nitrogen fertiliser loading facility at Kwinana, WA. The loading facility was a self-service station which allowed drivers to park a tanker, lower a loading platform over the filling port and fill the tanker with fertiliser without risk of falling.

The plaintiff driver in question would routinely leave a gap between the tank and the platform because he was under the impression that the truck's water tank prevented the platform from being lowered further. On one such occasion the driver slipped, fell through the gap some distance to the ground and was injured. The driver alleged, among other things, that CSBP Ltd and the tanker/driver supplier company (for which the driver was a contractor) failed to warn of the danger of falling, failed to develop a safe system, failed to ensure the tanker was compatible with the loading station and failed to adequately induct, instruct, train and supervise the driver – all of which are elements of the 'all reasonable steps' test for CoR compliance.

Importantly, the defendants were able to demonstrate, with documentary evidence, that:

  • all transport companies, all drivers and all vehicles servicing the site had been compliance screened, pre-approved and inducted into the safety management system; and
  • all drivers had received classroom-style training induction and practical demonstration in compliance with the safety management system and had been required to demonstrate competence and were then observed for their first wo loads.

These features were found to be more than satisfactory and the companies involved were held to have taken all reasonably practicable steps to ensure the drivers' safety - which will be the new CoR test post-amendments in 2018.

This case can be contrasted with CoR case Nolan v Sims Group Australia Holdings Limited and Delta Pty Limited [2015] NSWSC 1424, where the Court was critical of the superficial or non-existent nature of any CoR compliance induction program before the breach, but where the subsequent introduction of a comprehensive induction program in part lead to the substantial reduction in fines imposed.

Sims Group Australia Holdings Ltd (Sims) was the consignor of a load of scrap metal that caused significant damage to the roof cavity of the M5 east tunnel due to the load being over height. While Sims had an induction program in place, it was "little more than generic". Sims failed to have proper procedures relating to the loading of heavy vehicles at other sites, provide appropriate instructions to drivers to adequately compact and/or restrain the load and include in its haulage contracts conditions providing that where default occurred, the haulier would not be remunerated.

The remedial steps taken by Sims after the incident included a detailed review and update of relevant CoR arrangements, policies and procedures, implementation of audit system, "tool box talks" delivered to drivers and contractual clauses for non-payment of work carried out that was non-compliant with legislative requirements. These steps were cited as evidence that Sims was unlikely to re-offend and this was reflected in the substantially reduced penalty.

These cases demonstrate the importance of being able to prove that all parties performing CoR tasks within your supply chain have been comprehensively inducted in relation to the risks and safety measures required for compliance. Such preventative steps may be instrumental in making out the 'all reasonably practicable steps' defence or, at the very least, help to substantially reduce any fine.

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