Most Read Contributor in Australia, September 2016
A recent case (Kemp v Air Liquide Australia Ltd
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
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
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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