Environment Protection Authority v Toll Group Forwarding Pty Ltd [2018] NSWLEC 11

Toll Global Forwarding Pty Ltd (Toll) was fined $75,000 plus costs for failing to ensure that dangerous goods were transported in a safe manner contrary to section 9(1) of the Dangerous Goods (Road and Rail Transport) Act 2008 (NSW). The case was linked to facts which led to the successful prosecution and sentencing of customs broker and freight forwarder, Stockwell International Pty Ltd, and driver, Darren Hill, last year.

As consignor Toll engaged Stockwell to transport 16,066 kg of expandable polymeric beads (Class 9 Dangerous Goods) by road on 17 October 2014. If combusted, the beads had the potential to cause serious harm to human health and the environment by burning dense emissions of soot, carbon monoxide, styrene and aliphatic hydrocarbons.

Toll failed to provide Stockwell, Stockwell’s subcontractor, and the driver with the appropriate transport documentation identifying the dangerous goods, their inherent risks and emergency information if an incident occurred. It also failed to properly instruct Stockwell and undertake relevant checks to ensure Stockwell was capable of transporting the dangerous goods. For example, Toll failed to ensure the driver had a licence to transport dangerous goods, that the vehicle would not travel through prohibited areas (such as tunnels) and that the vehicle was equipped with appropriate fire extinguishers.

Robson J found that factors which contributed to the objective seriousness of Toll’s offence included:

  • the grave risk of harm arising from the unsafe transportation of the polymeric beads
  • the lack of information enabling the identification of the dangerous goods and their appropriate control measures
  • the degree of control Toll had over the causes of the offence
  • Toll’s failure to ensure that the persons whom it engaged acted in conformity with its legal duties.

Factors that mitigated against the severity of the sentence that might have otherwise been imposed included Toll’s:

  • genuine remorse and contrition which were demonstrated by its actions to address the causes of the offence and to rectify harm caused by it
  • lack of prior convictions
  • cooperation with authorities in relation to the proceedings
  • guilty plea at the earliest opportunity, which Robson J held warranted a discount of 25% of the $100,000 fine that was otherwise deemed appropriate.

Lessons

The case teaches those involved in the transportation of dangerous goods by road that they should:

  • actively ensure that those who they engage to transport goods have the capacity to transport such goods
  • provide or obtain clear instructions about how to transport the goods
  • ensure their transport documentation complies with the Dangerous Goods (Road and Rail Transport) Regulation 2014 (NSW) and the Code
  • ensure employees are trained at operational and senior management levels about the requirements for transporting dangerous goods and how to manage information and training provided to their subcontractors.