Nathan Cecil - Holding Redlich


Snapshot summary of 2016 casesNathan Cecil, Partner (Transport) Holding Redlich14 November 2016, Informa CoR Conference, Sydney

1. What was done?

2. What went wrong?

3. What should have been done?

4. Lessons learned

Snapshot summary of 2016 cases


Nolan v Sims, Delta & KreidiesSims (consignor- s53); Delta (Loader - s55); Kreidies (Operator - s56)

ss53, 55, 56:

(1) A person is guilty of an offence if:

(a) a breach of a mass, dimension or load restraint requirement occurs, and

(b) the person is the consignor/loader of any goods that are in or on the vehicle or combination concerned or the operator of the vehicle or combination concerned.


Nolan v Sims, Delta & Kreidies

Contractor induction program re site rules and loading procedures

Online general OHS induction program

No proper procedures re loading

No appropriate instructions to Delta or Kreidies re compacting/restraining load

No compliance assurance conditions in contracts

Standard work practice requiring compaction, no load over water line and driver to visually inspect

No measurement equipment No securing or restraint of

load

Company policy prohibited driving in tunnels

No instruction to driver re height check

No instruction to driver re load restraint

No equipment to measure height

Sims Delta Kreidies



• Reviewed policies/procedures

• Employed Nat’l Safety Manager

• Developed compliance division

• Annual staff safety conference

• Staff training

• Audit of transport contractor compliance

• Introduced compliance assurance conditions

• Reviewed policies/procedures

• Introduced compliance assurance conditions

• Contract: breach = no pay

• Conducted risk assessment

• Periodic audits of contractor compliance

• Tool-box talks with drivers (25-35/yr)

• Ongoing training for employees and contractors

• Installed navigation devices

• Implemented work procedure requiring input of weight and height of loads

• Changed load procedures to load under max. limit

Sims Delta Kreidies



• Fine - $3K

• Compensation - $55K

• Pros’n legal costs - $40K

• Fine - $6K



• Fine - $7K



Sims Delta Kreidies


R v Colbert

“Trucking boss Peter Colbert jailed for more than 12 years over driver Robert Brimson's death” – ABC News, 21 August 2016

“Trucking boss Peter Colbert 'showed no remorse' over driver's death caused by faulty brakes” - ABC News, 27 September 2016

“Colbert sentenced 10 years for manslaughter” – Owner Driver, 12 October 2016


Endangerment/manslaughter CoR

R v Colbert

• Duty of care to properly maintain braking systems

• Reckless indifference to risk of injury/death

• Statutory duty to ensure road safety through proper maintenance, so far as is reasonably practicable

• Executive Officer duty to exercise due diligence No maintenance system in place No instruction or training to employees No response to prior ‘near miss’ incident


Lessons learned • Where loads can be measured, they

should be• Induction programs and

policies/procedures must have substance

• All heavy vehicle road transport supply chain contracts should have compliance assurance conditions

• The courts support ‘breach = no pay’ clauses

• Information, instruction, training and supervision should be extended to contractors


Lessons learned (cont’d)

• An incident-free history ≠ all reasonable steps

• Parties in the Chain retain duties even after engaging independent contractors to perform those duties – shared responsibility

• Being aware of a CoR incident (incl. near miss) and not doing anything is as bad as being blind to incidents

• Springboarding will become more common


• Nolan v Sims Group & Delta [2015] NSWSC 1424

• Nolan v Kreidies [2016] NSWSC 177

• R v Colbert [2016] SASCFC 12

Case list


DisclaimerThe information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Nathan CecilPartner T 02 8083 0429E [email protected]

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