Latest News

Can the receiver be at fault for a CoR breach?

January 17, 2019

Under the Heavy Vehicle National Law (HVNL), a consignee is defined as the intended recipient of goods after completion of the road transport.

There is a common misconception that consignees, as receivers of goods, face less liability exposure under the HVNL.

However, consignees have an ongoing responsibility to prevent or reduce potential harm or loss in relation to transport activities and to ensure that they do not ask, require or direct activities that will breach the HVNL.

The level and nature of a consignee’s responsibility for a transport activity depends on:

  • the nature of the public risk created by the carrying out of the transport activity; and
  • the consignee’s capacity to control, eliminate or minimise the risk.

For example, if a consignee allocates tight time slots for the arrival of vehicles, this could potentially cause drivers to speed and increase the likelihood of an accident occurring.

How consignees can commit an offence under HVNL

Section 194 of the HVNL provides that a person who is a consignee of goods consigned for road transport using a heavy vehicle commits an offence if:

  1. the person does an act or makes an omission; and
  2. the doing of the act or making of the omission results, or is likely to result, in inducing or rewarding a contravention of a mass, dimension or loading requirement; and
  3. the person:
  • intends that result; or
  • is reckless or negligent as to the matter mentioned in paragraph (b).

The key words to consider are “act or omission”, “inducing or rewarding”, “intends that result” and “reckless or negligent”. The section requires all three elements to be satisfied.

Case law suggests that in approaching whether the conduct of a consignee is likely to induce a breach, the court will look at the relevant context and circumstances of the case. It follows that the court will consider a party’s CoR policy, its rationale and terms, as well as its application as a part of the delivery process.

In assessing “negligent conduct”, the Regulator will consider a number of issues including industry expectations and the policies implemented by a consignee’s competitors.

Steps consignees can take to manage compliance obligations

Consignees need to be proactive in ensuring that heavy vehicles comply with fatigue, speed, mass, dimension, loading and maintenance obligations.

Some ways in which this can be achieved include managing:

1. Fatigue

Set achievable delivery requirements so that drivers are not required to exceed regulated driving hours. In practice, this can be done by working with the driver/operator to set the timeslots for estimated arrivals and departures.

Have areas on site for drivers to rest and relax. It is often the case that drivers will travel long distances to deliver goods and are expected to take the minimum rest requirements before commencing another long journey.

2. Speed

Set achievable delivery requirements so that drivers are not required to exceed speed limits. Where it appears that a driver will not arrive on time, consignees should be flexible with their delivery requirements where possible.

3. Mass

Set achievable delivery requirements so that drivers are not required to exceed speed limits. Where it appears that a driver will not arrive on time, consignees should be flexible with their delivery requirements where possible.

4. Maintenance

Ensure that visual checks are undertaken of all heavy vehicles that arrive on site.

This is not an exhaustive list and it is important that consignees undertake “all reasonably practicable steps” to comply with the Chain of Responsibility (CoR).

All parties must manage their CoR obligations.

Consignees play an important role in the supply chain and should work with drivers and operators to achieve satisfactory delivery outcomes without comprising on road safety.

Are you meeting all your CoR obligations?

If you’re not 100% sure, now is the time to subscribe to CoR Adviser.

Written by the transport lawyers at Holding Redlich, this monthly newsletter and online resource provides the information you need to keep ahead of your CoR obligations and avoid costly penalties.

Take our free, no-obligation trial today.