Australia: HVNL mass measurement: Is near enough good enough?

Last Updated: 6 April 2017
Article by Dilip Ramaswamy (formerly with Holding Redlich)

Most Read Contributor in Australia, July 2018

Under the Heavy Vehicle National Law (HVNL), compliance with prescribed mass limits is an essential issue for road safety and asset protection. When measuring mass, is near enough good enough?

What are your mass obligations?

A person must not drive (on a road) a heavy vehicle that (together with its load) does not, or whose components do not, comply with the mass requirements applying to the vehicle.

The HVNL also makes it is an offence for a person to make an inaccurate, false or misleading statement as to the particulars of a consignment, including mass, to any official or in any transport documentation. The false and misleading provisions impose liability for knowing or reckless statements as to mass.

There is only one situation in which you cannot be held liable under the HVNL for a misstatement as to the mass of any consignment – and that is when you overstate its mass, meaning that the vehicle and load would actually weigh less than stated.

It is crucial that the mass of loads, and the axle and gross mass of vehicles, are able to be measured or calculated reasonably accurately. Where a mass breach occurs, all parties in the chain are deemed to have committed that breach, unless they can show that they had no ability to control or influence mass compliance, or they took all reasonable steps to avoid the breach. Find more information about measurement adjustment here.

Consequences of incorrect mass measurements

The importance given to getting your mass measurements correct arises from the consequences stemming from overweight vehicles. Transporting overweight loads on the road can cause a number of issues, including:

  • accelerating road wear;
  • damage to infrastructure; and
  • longer braking distances and vehicle instability.

The HVNL also extends liability for mass offences outside the operator and driver of the heavy vehicle. Indirect parties including the driver's employer, prime contractor, operator, consignor, packer and consignee will not be able to escape liability simply because they were not directly involved in driving or operating the vehicle.

What is the threshold for mass compliance?

There is no mandated method for mass measurement and no particular equipment that must be used to measure mass. Where mass is not physically measured but is calculated by some other means, there is no mandated method of calculation.

However, as soon as any mass limit is exceeded, an offence occurs. The HVNL provides for several offences for mass breaches and categorises them into four categories:

  1. Minor.
  2. Substantial.
  3. Severe.
  4. Critical.

The categorisation of the offence depends on the degree to which it exceeds the permitted limits. The more severe the category of offence, the higher the potential penalties.

So, although there is no mandated method for mass measurement, it is essential from a compliance perspective that whatever method is used is reliable and accurate.

Given that no particular form or brand of measurement equipment is mandated, what about the standard of accuracy of any equipment used? Is near enough good enough? Any mass breach is actionable, so near enough isn't good enough.

The Heavy Vehicle National Regulator (NHVR) has taken into account that an assessment of mass may potentially vary from time to time due a number of factors including the equipment used, the measuring methods and the surrounding conditions, e.g. site set up.

Therefore, the NHVR will apply a 'measurement adjustment' when assessing compliance with mass and dimension limits in certain circumstances. Depending on how mass is measured and how a site is set up (e.g. whether weighing equipment is on a flat concrete surface vs a bitumen surface vs an unsealed surface), the regulator will allow an adjustment of between 250 kilograms and 1,000 kilograms per measurement. The mass adjustment only applies where mass is actually physically weighed on site. Where mass is not weighed but is calculated by other means, the mass adjustment does not apply.

Taking reasonable steps to prevent mass offences

Parties in the chain will often be required to establish that they have taken all reasonable steps in relation to mass offences. Some of the important issues that a court will consider, as identified in the HVNL, include:

  • the circumstances of the offence;
  • what measures were taken by the party in relation to mass compliance;
  • the measures available and measures taken by the party;
  • whether the party had, either personally or through an employee or agent, custody or control of the heavy vehicle, its load, or any goods included or to be included in the load; and
  • the personal expertise and experience that the party had or ought reasonably to have had, or that an employee or agent of the party had or ought reasonably to have had.

Parties in the chain must always take all reasonable steps to ensure vehicles are loaded within their legal mass limits. Breaches of vehicle mass are serious offences and therefore the importance in getting this right cannot be overstated.

Near enough is not good enough. While there is some allowance for error, it is limited to certain circumstances only and in any event, will not excuse a failure to manage mass at all.

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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