The designers of the Chain of Responsibility
(CoR) laws deliberately set a very high bar when
drafting the 'all reasonable steps' defence. The effect is
that most offences under CoR are 'strict', meaning that
you're guilty unless proven innocent. While this is likely to
change if and when CoR moves to 'primary duties', the
taking of all reasonable steps will remain relevant for some time
So, what does it mean and what must you do if you want any
chance of a successful defence?
Fortunately, the Heavy Vehicle National Law
(HVNL) provides considerable guidance on how the
defence is intended to operate. According to s 618, if the HVNL
specifies that you have a reasonable steps defence, you must prove
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.
Defending 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.
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)).
This is relatively straightforward, though, curiously, it
requires that the weighing and measuring be both safe and accurate.
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
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.
It is important to remember that while the sub-section does not
expressly say so, keeping records of the relevant weight or
measurement will be important, as will knowledge about what weights
and dimensions are legal.
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)).
This relates to the obligations of consignors and prime
contractors to ensure that information provided about the weights
of loads is accurate.
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. 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.
Once again, while the subsection does not expressly say so, it
is important to keep records of the information so that, if
necessary, you can demonstrate why you believed the information to
be 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.
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
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 both safe and
efficient, and make use of the best available technologies.
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
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This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
Executive officers would face a new primary duty of due diligence to ensure that corporations comply with CoR duties.
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