The Heavy Vehicle National Law (HVNL) came into effect in NSW on
10 February 2014 and applies to people who own or operate, or work
with people who own or operate, vehicles of 4.5 tonnes or
The HVNL came about, in part, as a means to minimise the risk of
horrific road tragedies involving heavy vehicles; such as the
crashes involving Lennon's Transport in 2012 at Menangle, which
resulted in three deaths, and in 2013 at Mona Vale, involving
Cootes Transport, which resulted in two deaths and five people
The accident at Mona Vale led to an investigation into the
entire Cootes fleet, which resulted in Cootes, in 2014, being fined
$440,900 by the NSW courts, and $50,250 by the Victorian courts for
hundreds of safety breaches and defect notices.
The driver of the Cootes truck was charged with dangerous
driving occasioning death and grievous bodily harm. The judgment in
relation to those criminal charges was handed down on Friday, 19
February 2016 - the driver was acquitted. The driver had relied on
evidence that his brakes failed on a downhill section of Mona Vale
Road, arguing that the cause of the accident was defective brakes
(which meant that he could not slow down and hence was driving over
the speed limit before the accident), and not dangerous driving.
It seems that this evidence meant that the jury had at least
a reasonable doubt that he was driving dangerously.
The HVNL contains "Chain of Responsibility"
provisions, which render all those within the chain of
responsibility potentially liable for the same incident. Those that
fall within the chain of responsibility include operators,
employers, contractors, consignors, consignees, loading manager,
loader, packer, scheduler and unloaders. For example, each one of
these individuals can be liable for fatigue related offences by the
operator/driver, under the HVNL because each individual has the
potential to affect how long the operator is on the road, and
whether or not they are able to take the necessary minimum work
breaks to avoid fatigue.
However, if the individual can show that they didn't know,
and could not reasonably be expected to have known of the
contravention concerned and they took all reasonable steps to
prevent the contravention or there were no steps that could
reasonably be expected to have been taken to prevent it, then they
have what is called the "reasonable steps" defence.
In the case of Cootes, Cootes knew, or should have known, that
there were defects with many of the trucks in their fleet, and with
servicing - drivers had told them of problems with the trucks, and
a proper maintenance program should have picked up problems.
Therefore, steps should have been taken to ensure that the trucks
were completely roadworthy before they allowed them to be
The Cootes case demonstrates that it is important for employers
to identify the risks and hazards in their workplace, and to ensure
that they take all reasonable steps to minimise those risks or
hazards occurring. If you fail to do this, and fail to consider
where in the supply chain you lie, you could be exposing yourself
to liability under the HVNL.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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