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What are the Chain of Responsibility implications for failing to ‘look up’?

September 8, 2016

How long has it been since we’ve heard of major traffic snarls caused by an over-height heavy vehicle hitting the top of a tunnel or the underside of a bridge?

Earlier this year, there was a spate of these types of accidents, mainly in Melbourne and Sydney – hits and near misses that caused chaos to peak hour traffic.

It’s been 50 days since Melbourne’s notorious Montague Street Bridge, a 3.0m high light rail bridge dubbed Australia’s most hit bridge, suffered its last hit in June. After much media pressure, VicRoads installed a gantry system with low-hanging rubber paddles to warn over-height vehicles as they approached the bridge.

However, not long after the installation, a delivery truck was wedged under the bridge, with the driver reportedly saying he heard a noise when he hit the rubber warning paddles but didn’t think much about it because he had his music turned up loud.

As most of you know, bridges and tunnels will often have vehicle height restrictions – often clearly marked on the infrastructure. So what happens from a Chain of Responsibility (CoR) perspective if an over-height vehicle collides with the top of a tunnel or the underside of a bridge?

Under section 611 of the Heavy Vehicle National Law (HVNL), a court may make a compensation order requiring a person convicted of a CoR breach to compensate the road manager for damage caused to road infrastructure as a result of the offence. In making such an order, the Court must conclude that, on the balance of probabilities, the damage was caused by – or partly caused by – the commission of the offence.

However, compensation under s 611 can only be ordered when a CoR conviction has been recorded. While a vehicle and its load may be over-height in respect of a particular route, is that still a CoR breach?

Public safety

Chapter 4 of the HVNL relates to mass, dimension and loading of heavy vehicles. According to s 94, the purposes of Chapter 4 are to improve public safety and reduce damage to road infrastructure by:
“imposing restrictions about…the projections of loads on heavy vehicles.”

The dimension requirements reference “national regulations” that may deal with the dimensions of the load on a heavy vehicle. It is an offence to drive a vehicle that does not comply with the “dimension requirements applying to the vehicle.”

There are provisions that apply to projections that are dangerous to persons or property, but they only apply in the case of the length and width of the load. However, s 108 contains something of a catch-all. It applies if a heavy vehicle’s load projects in a way that is dangerous to persons or property, even if all dimension requirements, and all warning and other requirements prescribed in the national regulations are met.

Such a breach will ordinarily only be a minor risk breach, unless it happens at night or in reduced visibility conditions – this would make it a substantial risk breach.  Even if it is only a minor risk breach, such a breach would be sufficient to allow the court to make a compensation order in relation to damage done by the vehicle.

To find out more about how you can avoid breaches of CoR obligations, it’s a great idea to source proper legal advice.

Subscribers to CoR Adviser, written by the transport experts at Holding Redlich lawyers, is the perfect way to gather all your CoR-related information into an easy-to-read, concise monthly newsletter.

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