Under the Heavy Vehicle National Law (HVNL), drivers and other parties to the supply chain often come close to the line in complying with their safety responsibilities. Here, we discuss the importance of identifying and analysing near misses across the supply chain and the value of reporting them.
Unfortunately, these narrow escapes are all too often swept under the carpet for a number of reasons, including the fear of adverse ramifications in reporting these incidents and the general lack of understanding regarding Chain of Responsibility (CoR) obligations.
What are near misses?
As the term suggests, near misses are incidents that nearly resulted in an injury or dangerous occurrence, but which do not amount to a CoR breach. The importance of identifying and reporting near misses stems from the HVNL.
Examples of near misses include not following the appropriate speed limit or incorrectly issuing a non-compliant container weight declaration (CWD).
Parties across the supply chain are naturally incentivised to write off near misses as 'no harm, no foul' situations because these incidents have not discernibly affected their business or their profit margins.
The concern remains that by informing relevant parties within the business of near misses, workers may face consequences, including being cautioned or even losing their job. However, this way of thinking masks the obvious truth that a near miss is often a predictor for a similar – or more serious – incident occurring at a later stage.
Why is it important to report near misses?
Research by Premium Driver Australia suggests in its white paper, Corporate Driver Safety: Understanding the Chain of Responsibility, that for every road-related fatality, there are approximately 50 hospitalisations, 500 road incidents and 5,000 near misses on our roads. These statistics do not even take into account potential mistakes made by other parties in the supply chain relating to loading, packing, etc.
The HVNL has identified that the circumstances of any incident, crash or near miss may form part of the matters that a court will consider in deciding whether a person was impaired by fatigue.
Likewise, the HVNL requires businesses to take steps to manage
risks by eliminating CoR safety risks or mitigating the effects of
any risk that cannot be eliminated. Courts may consider a
business's response to prior CoR incidents (including near
misses) when considering whether a business has taken 'all
reasonable steps' to avoid CoR breaches.
Therefore, it is crucial that parties are incentivised to report any near misses to their managers in order to comply with their legislative obligations and fulfil their CoR obligations.
- A transport operator attends your premises and is inducted into site procedures, including load restraint. He signs an acknowledgment of his understanding of the requirements. He is then left to restrain his load himself. As he is leaving, an employee coming back from lunch notices that the load is not restrained properly. The driver is called back and the load restraint fixed.
- An operator who arranges for a freight container to be transported has prepared a CWD before the journey has commenced. However, it is not compliant as it lists an incorrect weight. The journey is subsequently completed and no adverse incidents arise from the non-compliant CWD.
In these examples, although the job was executed safely, the risk of an incident occurring was high. If incidents similar to these are identified and reported by the relevant workers, it will allow parties to develop a risk management system that involves:
- identifying hazards to ensure they are prevented in the future;
- assessing risks, and whether the task should be completed;
- controlling risks to ensure the safety of all relevant parties; and
- reviewing control measures to identify areas of improvement.
'All reasonable steps' Defence
Identifying and reporting near misses also assists in showing that a party has taken 'all reasonable steps' in defence of any breach of the CoR. A person in the supply chain can claim an 'all reasonable steps' defence if they can show they did not know or could not reasonably have been expected to know that a breach had occurred.
Identifying and reporting near misses will go a long way towards showing the regulator that:
- CoR is managed under the appropriate risk management framework;
- policies, procedures, systems and processes are in place under the appropriate risk management framework; and
- compliance is monitored with policy, procedures, task descriptions and corrective action plans.
5 tips for identifying and reporting near misses
Take the following steps when addressing near misses:
- Keep open lines of communication with workers to emphasise the importance of providing information about near misses.
- Provide a clear definition of a near miss and make it readily available to all employees and relevant parties in the supply chain.
- Highlight that reporting a near miss will not result in disciplinary measures.
- Ensure that staff can provide information regarding near misses through various channels, e.g. photos, phone calls and debriefs.
- Always provide feedback on the information obtained through this identification and reporting process.
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.