The creators of the Chain of Responsibility (CoR) laws set a very high bar when they drafted the ‘all reasonable steps’ defence. In most cases, if you’re accused of breaching a CoR law, you have to prove your innocence rather than have the prosecution prove your guilt.
While this is likely to change when CoR moves to ‘primary duties’, the taking of all reasonable steps will remain relevant for some time to come.
Fortunately, the Heavy Vehicle National Law (HVNL) provides a lot of guidance on how the defence is intended to operate. According to section 618, if the HVNL specifies that you have a reasonable steps defence, you must prove that:
- the person charged did not know, and could not reasonably be expected to have known, of the contravention concerned; and
- either the person took all reasonable steps to prevent the contravention or there were no steps the person could reasonably be expected to have taken to prevent the contravention.
So, how do you defend a mass, dimension or loading offence?
Section 620 of the HVNL lists the sorts of matters that a court may consider in relation to a reasonable steps defence for mass, dimension or loading offences.
1. Accurately and safely weigh or measure the heavy vehicle or its load, or safely restrain the load in the heavy vehicle – ss 620(1)(b)(i).
It is likely that the element of safety applies to measurement of load dimension and load restraint. While it may be physically possible for a driver to apply load restraint, depending on the nature of the load, it may not be safe for that driver to do so without assistance.
Ensure that drivers and others responsible for measuring the dimensions of a load are issued with tape measures and/or trained in how to use them.
2. Provide and obtain sufficient and reliable evidence from which the weight or measurement of the heavy vehicle or its load might be calculated – ss 620(1)(b)(ii).
Consignors should be under a contractual obligation to provide accurate data and/or should be required to warrant that all information provided about the weight of cargo is accurate and verifiable. But it may not be sufficient for a prime contractor to rely on the data provided by a consignor.
The prime contractor must be able to satisfy themselves that the information is both sufficient and accurate. This is particularly important where the vehicle may not have access to a weighbridge as a means of assessing gross vehicle mass.
3. Manage, reduce or eliminate a potential contravention arising from the location of the heavy vehicle, the location of the load on the heavy vehicle or the location of goods in the load – ss 620(1)(b)(iii).
This subsection imposes a positive obligation to institute a system designed to reduce risk associated with loading. The Load Restraint Guide (currently being updated by the National Heavy Vehicle Regulator) might be a useful starting point. Depending on the nature of your business and the cargo you move, you should look into cargo loading and securing systems that are safe and efficient, and make use of the best available technologies.
NB: While the subsections don’t expressly say so, it is important to keep records of the information so that, if necessary, you can demonstrate why you believed the information you received was both sufficient and accurate. For example, you may be asked why you didn’t ask for additional evidence, and what it was about the information that made you think it was accurate.
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A more detailed version of this article was originally published in CoR Adviser.