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5 essential things CoR parties must know to avoid court

February 7, 2019

 

Below we outline five important lessons we can learn when parties in the Chain of Responsibility (CoR) have ended up in court for breaches of the Heavy Vehicle National Law (HVNL).

Lesson 1:

Relying solely on a Container Weight Declaration (CWD) will not absolve you from all your breaches.

In Roads and Maritime Services v Troy Heavy Haulage Pty Ltd(2013), the defendant was convicted of various offences when it collected a shipping container that was packed with a load of five forklift machines, forks and masts.

The load was in breach of mass, dimension and load restraint laws. These were all categorised as ‘severe-risk’ breaches.

The defendant sought to rely on the ‘reasonably practicable steps’ defence stating that it completely relied on the CWD it received.

The court was critical of this and said that the CWD could only be relied upon to the extent that the weight of the container and its contents was relevant to the offence.

Here, axle mass, dimension and load restraint laws were breached. The CWD did not provide any assurance on these matters, covering only the gross mass of the loaded container.

As a result, reliance on it was misplaced and invalid, and the defendant was found guilty.

Lesson 2:

If you want to rely on the ‘reasonably practicable steps’ defence, you need to show that you took ALL possible steps, not just some.

In Vic Roads v City of Glen Eira (2010), a council was charged with 88 offences relating to breaches of mass limits by rubbish collection trucks after officers conducted an audit at the weighbridge at the depot.

The council relied on the ‘reasonably practicable steps’ defence and the court found that the council had taken all reasonably practicable steps to avoid the commission of breaches for some of the following reasons:

  • it had put in place a commercial arrangement that required compliance with legislative or regulatory provisions;
  • it had ensured the commercial arrangement was adequate for the requirements of the service at the time of the arrangement and for the future;
  • it had structured the arrangement so that there was no incentive to breach regulations;
  • it had included a disincentive to breach such regulations, such as bonus payments only paid when full compliance was met; and
  • it had monitored and negotiated on the system to ensure its smooth operation and compliance.

Lesson 3:

Directors are not immune from CoR liability.

In an unreported local court judgment (Bullin Pty Ltd (2008/2009)), a trucking company went into liquidation after recording more than 500 offences (mostly related to CoR) in NSW between December 2003 and October 2007.

A year later, the court found the company and the director liable for these CoR breaches. The director was held personally liable for 89 overloading offences despite the business going into liquidation.

The court noted that the director was a “systematic or persistent offender,” and made a ruling that he was prohibited from working in any business that involved moving a heavy vehicle to, through or from an NSW road.

Lesson 4:

A work diary must contain an accurate account of work and rest hours. If it is found to be misleading, you may be investigated and prosecuted.

In the case of Department of Planning, Transport and Infrastructure v Bridgart (2014), a truck driver was found guilty of:

  • inaccurately reporting information in his work diary; and
  • recording that he was resting at a particular time when he was in another location 300km away.

In considering the sentencing punishment, the appeal court gave regard to the fact that an accident involving a heavy vehicle puts the driver and other road-users at significant risk of death or serious injury and to mitigate this risk, drivers must adhere to certain work and rest times.

The legislation was there to act as a personal and general deterrent to drivers who enter false information in their work diaries. On appeal, the court increased the driver’s fine from $200 to $2,000.

Lesson 5:

Smaller companies face the same CoR obligations as larger corporations. The regulator does not discriminate.

In the case of Palfrey v Spiteri and Others (2014), a small company (with one director), which transported quarried materials from their source to various construction sites, was found guilty of having no systems in place that addressed any issue relating to fatigue management for the drivers.

The court was critical of the complete failure by the defendant to have these systems in place, even though there was limited capacity to do so.

The investigation by the Roads and Maritime Service revealed that trucks were operating according to customer service and commercial considerations, rather than taking into account or following safe working practices.

The court imposed eight offences against the company and 19 against the company’s director. It stated that the penalties imposed reflected that while the company was the principal operator of the business, Mr Spiteri (the director) was in real control and the company was essentially a one-person company.

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