Australia: Driver's failure to check loading becomes operator's liability

Last Updated: 29 November 2015
Article by Danella Wilmshurst

Most Read Contributor in Australia, September 2017

This article discusses a case, Western Freight Management Pty Ltd v Roads and Maritime Services, New South Wales [2013] NSWSC 260, that has significant ramifications for companies or individuals charged with a mass breach under the Chain of Responsibility (CoR) regime.

While this case concerns the Road Transport (Vehicle and Driver Management) Act 2005 (NSW) (the Act), which was repealed in 2014 and has been replaced by the Heavy Vehicle National Law (NSW), it nonetheless demonstrates how the 'reasonable steps' defence has been applied in relation to mass breaches in the past.

In this case, the truck operator, Western Freight Management Pty Ltd, was charged with contravening s 56(1) of the Act, as their driver had breached the mass requirements and overloaded a truck axle by 2.68 tonnes.

The operator elected to go to court rather than pay the penalty, as they wished to run the defence to s 56 of the Act that as driver and operator, they had taken all reasonable steps to prevent the contravention.

Section 56 of the Act was worded as follows:

  1. A person is guilty of an offence if:
    1. a breach of a mass, dimension or load restraint requirement occurs, and
    2. the person is the operator of the vehicle or combination concerned.
  1. If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
  2. If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.

The operator could rely on the defence if they:

  1. did not know, and could not reasonably be expected to have known, of the contravention, and
  2. had taken all reasonable steps to prevent the contravention.

The original decision and its appeal

Western Freight Management admitted that the axles were overloaded, but attempted to argue that their driver had taken all reasonable steps to avoid the overload.

The magistrate held that reasonable steps had not been taken. The operator then unsuccessfully appealed to the Supreme Court. Finally, it appealed to the Supreme Court of New South Wales – Court of Appeal.

The primary ground of appeal advanced to the Court of Appeal was that the magistrate who originally heard the case had erred in holding that the prosecutor was not obligated to specify exactly what reasonable steps Western Freight Management should have taken.

The Court of Appeal did not accept this. It pointed out that while establishing that all reasonable steps had been taken to prevent a breach was indeed a potential defence, the offence was not worded as a "failure to take all reasonable steps".

This meant that the prosecution did not have to list a correct set of reasonable steps to prove that an offence had been committed.

Operator fails to establish reasonable steps defence

The Court of Appeal noted that the operator failed to establish the reasonable steps defence, as the driver had not adequately checked the load to ensure it had been correctly distributed across all axles prior to driving out of the loading area and onto the road.

The driver submitted to the court that he was not physically in a position where he could supervise the loading of the truck, nor could he actually determine whether the fork lift driver loading the truck had done so correctly. This was because he was in a designated 'driver safety zone' some 30 metres away at the time of loading.

Even so, the driver conceded that he had failed to inspect the truck after loading. Instead, he had relied on the professional work of the forklift driver, who had subsequently overloaded the vehicle axles.

The driver had numerous opportunities to rectify the weight issue, and failed to acknowledge that it was ultimately his responsibility to check that the tri-axle was not overloaded.

It was noted that Western Freight Management had a practice and procedure manual which clearly stated that it was the driver's responsibility to check the axle weights. The CEO of the Operator provided evidence that the Operator would make an effort to call the loader of the goods if a vehicle was overloaded. The CEO also acknowledged that under the CoR, weight management compliance is the driver's responsibility.

However, despite Western Freight Management's explicit policy reference and the CEO's understanding of CoR liabilities, the driver's failure to take reasonable steps and to take a 'common sense' approach to check the vehicle mass after loading, implicated both the driver and the company in a contravention of s 56 of the Act. They were fined $3000, plus costs.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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