A recent case (Kemp v Air Liquide Australia Ltd[2014] NSWSC 1200), involving a fatality resulting from a poorly secured load, hits home that a liable party in a chain of responsibility cannot escape liability by implementing compliance procedures after the fact.
After the fatal accident, but not before proceedings were commenced, Air Liquide (the Company) established a 'national working group' to address the chain of responsibility (CoR). That group met monthly and circulated items to action.
The Company also engaged in a structured safety and risk management process used to measure, on a monthly basis, the Company's performance and its management in three basic areas dealing with its CoR obligations.
Further, the Company introduced online induction training for third-party carriers and customers, and engaged third-party carriers through a contractual mechanism which obliged them to comply with the Company's guidelines and procedures.
The Court described these steps as 'commendable', but not enough to avoid conviction and a fine.
The judge observed that:
"The Company was prompted to take those steps, not by the [CoR] legislation being introduced, as it should have been, but rather after the incident occurred and because of it".
The Company received a fine of $5,500 (20% of the maximum possible fine) – accounting for the fact it had no previous convictions and acknowledging that the steps it had taken meant the risk of future offending was low.
The business that operated the truck involved in the accident, DXT, and its director, were separately prosecuted and fined.
This case also clearly demonstrates how multiple parties in the supply chain may face consequences for safety breaches.
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