From next year, vehicle maintenance will be added to the Chain of Responsibility (CoR) ‘four pillars’, being fatigue, speed, load restraint and mass/dimensions.
Maintenance, or rather a lack of maintenance, has been identified as the cause of a number of serious heavy vehicle incidents (including fatalities).
While proper maintenance is critical to heavy vehicle safety, extending responsibility to other parties in the Chain has not been easy, says transport lawyer and Editor-in-Chief of CoR Adviser Geoff Farnsworth.
“While consignors and consignees (for example) can directly influence or monitor mass, speeding and fatigue, how are they to monitor or influence something as complex and technical as vehicle maintenance, and isn’t maintenance something peculiarly with the control of the vehicle owner/operator?” he asks.
“Do consignees and consignors have to include a policy requiring that their transport providers maintain their vehicles and do they then need to audit that maintenance?”
The answer appears unclear.
What CoR parties are required to do in relation to maintenance
Geoff explains that vehicle maintenance has been introduced into the central concept of ‘transport activities’, around which many of the new CoR obligations and duties hinge.
‘Transport activities’ is defined in section 5 to mean:
“activities, including business practices and making decisions, associated with the use of a heavy vehicle on a road, including, for example,
a. Contracting, directing or employing a person
i. To drive the vehicle; or
ii. To carry out another activity associated with the use of the vehicle (such as maintaining or repairing the vehicle).”
Section 26A deals with the principle of “shared responsibility” and provides that:
1. The safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle.
2. The level and nature of a party’s responsibility for a transport activity depends on
a. the nature of the public risk created by the carrying out of the transport activity; and
b. the party’s capacity to control, eliminate or minimise the risk.The key sentence to consider is “capacity to control, eliminate or minimise the risk”.
Section 26C provides that the primary duty under CoR is to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle.
This limits the relevant transport activities to those performed in a particular capacity by the particular party.
The effect is that consignors and consignees, for example, do not generally contract with third parties to carry out maintenance to vehicles.
On the other hand, an operator of the vehicle will be more likely to contract for the maintenance of the vehicle.
It is worth bearing in mind, however, that (as stated in section 26B(1)) a person may have more than one duty because of the functions the person performs or is required to perform.
In other words, a person might be an operator, and a consignee or consignor. In these circumstances, their responsibilities will be not just limited to a cursory check of the truck upon arrival.
And what about directors?Under section 26D, if a legal entity has a primary duty under section 26C, an executive must exercise due diligence to ensure the legal entity complies with the duty.
Does this mean that a director of a consignee (for example) must exercise due diligence to make sure a third party transport provider properly maintains the vehicles that carry the consignee’s goods?
It does not appear that the new CoR has this effect, unless as mentioned above, the consignee is also the operator of a vehicle.
What else do you need to know?
CoR Adviser, the monthly newsletter written by the transport lawyers at Holding Redlich, has the latest information specific to CoR, regardless of where you fit in the supply chain.
Written in plain English and containing the latest news, regulator updates, expert tips, downloadable templates and other helpful information you won’t find elsewhere – especially in the mainstream media – CoR Adviser is your go-to newsletter for all things related to chain of responsibility.
Don’t delay and risk missing out on news that is vital to your business’ operations. Subscribe to CoR Adviser today.