There is a common misconception that consignees, as receivers of goods, face less liability exposure under the HVNL. Not true! Recent investigations and prosecutions indicate otherwise. They highlight that consignees also 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 instance, if a consignee allocates tight time-slots for the arrival of vehicles, this could potentially cause drivers to speed and increases the likelihood of an accident occurring.
How do you define 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:
- the person does an act or makes an omission; and
- 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
- the person intends that result; or is reckless or negligent as to the matter mentioned in paragraph (2).
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.
5 steps consignees can take to manage compliance
Although it may seem impractical and burdensome to some, 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:
Step 1 Fatigue (a)
Setting 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 time slots for estimated arrivals and departures.
Step 2 Fatigue (b)
Having 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.
Step 3 Speed
Setting achievable delivery requirements so that drivers are not required to exceed the speed limits. Where it appears that a driver will not arrive on time, consignees should be flexible with their delivery requirements (where possible).
Step 4 Mass
Implementing policies to penalise vehicles that arrive on site above the permissible mass limits. The Regulator will want to see that consignees are not inducing or rewarding drivers to overload vehicles. This can be achieved by having a scale of penalties depending on the size of the breach, (e.g. warning notice, mass breach notice, banning).
Step 5 Maintenance
Ensuring that visual checks are undertaken of all heavy vehicles that arrive on site.
This is not an exhaustive list and it is important that parties undertake “all reasonable steps” to comply with the CoR.
Additional warning for grain industry
Mass breaches have been a key focus area for the Regulator, particularly given the introduction of the Grain Harvest Management Scheme in Victoria. In previous years, many grain receivers (consignees) were prepared to accept overloaded trucks during the harvest period for a number of commercial reasons, (e.g. relationships with growers and financial incentives). This conduct is not only unacceptable but also highly dangerous.
With the upcoming changes to the HVNL almost here (1 October), it is important for all parties to be proactive about managing their Chain of Responsibility (CoR) obligations. Consignees, in particular, play an important role in the supply chain and should work with drivers and operators to find the right balance between road safety and achieving satisfactory delivery outcomes.
If you need more information on how to be CoR-compliant and avoid increased financial penalties for CoR law breaches, whether you’re a transport operator, driver, consignor or consignee, subscribe now to the Cor Adviser.
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