Australia: Shared responsibility and the new Chain of Responsibility (CoR) laws for heavy vehicles

Last Updated: 10 November 2017
Article by Geoff Farnsworth

The express principle of shared responsibility (at section 26A) is one of the features of the new Chain of Responsibility (CoR) laws.

It states that:

  1. The safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the chain of responsibility for the vehicle.
  2. The level and nature of a party's responsibility for a transport activity depends on:
    1. the functions the person performs or is required to perform, whether exclusively or occasionally, rather than:
      1. the person's job title; or
      2. the person's functions described in a written contract; and
    2. the nature of the public risk created by the carrying out of the transport activity; and
    3. the party's capacity to control, eliminate or minimise the risk.

So what does that mean, and why is it important?

You can't delegate (or contract out) of your responsibilities

We have previously written about the practice found in some transport contracts where Party A attempts to shift responsibility for CoR compliance onto Party B, and requires Party B to indemnify Party A if it is found to be in breach of its CoR obligations.

We have commented that such clauses, if they are effective, show a significant misunderstanding of the operation of CoR. If you're busy trying to shift responsibility onto someone else, you're probably not managing your actual responsibilities properly.

This is now made express in subsection 26A(2)(a)(ii) and again in subsection 26B(4); in summary, it is what you do and the functions you actually perform that are relevant and not what a contract may say.

We're equal, but different

Subsection 2 recognises that while there will always be multiple parties in a chain of responsibility in relation to a heavy vehicle, the level and nature of each parties responsibility differs according to what they actually do (as opposed to what a contract may say); the party's capacity to control, eliminate or minimise the risk, and the nature of the public risk created by carrying out the transport activity.

Capacity

One of the challenges around CoR is the scalability of duties and obligations. Should a 'big' business have higher safety standards and obligations than a 'small' business? And should this matter?

The legislation appears to try to deal with this through the use of the word capacity; that is, rather than prescribing what all businesses must do, it focuses on that a party is capable of doing. While this introduces an element of subjectivity, it is necessary to reflect and preserve the diversity of the transport industry which covers everything from large international operators to small family businesses.

The concept of capacity is also relevant to the concept of reasonably practicable. This is the CoR performance benchmark in many respects, and particularly in relation to compliance costs and whether a cost is grossly disproportionate to the likelihood of the risk of damage.

Public risk

The level of a party's responsibility also depends on the nature of the public risk created by the transport activity. Public risk is a defined term comprising safety risk (which is not defined), or a risk of damage to road infrastructure.

The meaning and relevance of public risk in this context is less clear. It appears to be intended to elevate the importance of risk to members of the public over private risk and of damage to public infrastructure over damage to private infrastructure.

The executive

Finally, one of the features of the new CoR is to make clear that a company's executive officers are now in the front-line of CoR. While executive officers are not expressly included within the definition of party in the chain of responsibility their responsibilities and liabilities will be greater than under the current law. In assessing whether a person is a member of the executive section 26A makes clear that it is the person's functions that are important and not just his or her job title.

Conclusion

We won't know the true impact of the principle of shared responsibility until the new law comes into force. Until it does this principle sends a clear signal to all parties in the chain that they have unique compliance obligations that cannot be passed up or down the chain.

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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Authors
Geoff Farnsworth
 
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