Australia: Five key lessons from five key CoR related cases

Last Updated: 11 December 2017
Article by Nathan Cecil, Geoff Farnsworth, Harry Kingsley and Suzy Cairney
Most Read Contributor in Australia, August 2018

Although the Heavy Vehicle National Law (HVNL) may not have been around for long, road transport legislation has been around since the inception of heavy vehicles. There is no doubt that legislation is often difficult to understand and open to differing interpretations. Hence, we often rely on Court judgments for guidance and to give meaning to words within the legislation.

In this article, we have saved you the time of sifting through pages and pages of case law, extracting five key lessons from five CoR related cases that relate to your Chain of Responsibility (CoR) obligations.

Lesson 1: Relying solely on a Container Weight Declaration (CWD) will not absolve you from your all breaches

In Roads and Maritime Services v Troy Heavy Haulage Pty Ltd [2013] NSWLC 21, the Defendant was convicted of various offences when it collected a shipping container that was packed with a load of five forklift machines, forks and masts. The load was in breach of mass, dimension and load restraint laws. These were all categorised as "severe-risk" breaches. The defendant sought to rely on the 'reasonable steps defence' stating that it completely relied on the container weight declaration (CWD) it received. The Court was critical of this and said that the CWD could only be relied upon to the extent that the weight of the container and its contents was relevant to the offence. Here, axle mass, dimension and load restraint laws were breached. The CWD did not provide any assurance on these matters, covering only the gross mass of the loaded container. As a result, reliance on it was misplaced and invalid and the defendant was found guilty.

Lesson 2: If you want to rely on the reasonable steps defence, you need to show that you took ALL possible steps, not just some.

In Vic Roads v City of Glen Eira (2010) Magistrates Court, the Council was charged with 88 offences relating to breaches of mass limits by garbage collection trucks after officers conducted an audit at the weighbridge at the depot. Council relied on the "reasonable steps" defence and the Court found that the Council had taken all reasonable steps to avoid the commission of breaches for the some of the following reasons:

  1. put in place a commercial arrangement that required compliance with legislative or regulatory provisions
  2. ensured the commercial arrangement was adequate for the requirements of the service at the time of the arrangement and for the future
  3. structured the arrangement so that there was no incentive to breach regulations
  4. included a disincentive to breach such regulations such as bonus payments only paid when full compliance met
  5. monitored and negotiated on the system to ensure its smooth operation and compliance.

Lesson 3: Directors beware, you are not immune from CoR liability

In an unreported Local Court judgment (Bullin Pty Ltd (2008/2009)), a trucking company went into liquidation after recording over 500 offences (mostly related to CoR) in NSW between December 2003 and October 2007. A year later, the Court found the Company and the director liable for these CoR breaches and the director was held personally liable for 89 overloading offences despite the business going into liquidation. The Court noted that the director was a "systematic or persistent offender," and made a ruling that he was prohibited from working in any business that involved moving a heavy vehicle to, through or from a NSW road.

Lesson 4: A work diary must contain an accurate account of work/rest hours. If found to be misleading, you may be investigated and prosecuted

In the case of Department of Planning, Transport and Infrastructure v Bridgart [2014] SASC 112, the Respondent truck driver was found guilty of inaccurately reporting information in his work diary, recording that he was resting at a particular time when he was in another location 300km away. In considering the sentencing punishment, the appeal Court had regard to the fact that an accident involving a heavy vehicle puts the driver and other road users at significant risk of death or serious injury and to mitigate this risk drivers must adhere to certain work and rest times. The legislation was there to act as a personal and general deterrent to drivers who enter false information in their work diaries. On appeal, the Court increased the Respondent's fine from $200 to $2000.

Lesson 5: Smaller companies face the same CoR obligations as larger corporations. The regulator does not discriminate!

In the case of Palfrey v Spiteri and Others [2014] NSWSC 842, a small company (one director), which transported quarried materials from their source to various construction sites was found guilty of having no systems in place which addressed any issue relating to fatigue management for the drivers. The Court was critical of the complete failure by the Defendant to have these systems in place, even though there was limited capacity to do so. The investigation by the Roads and Maritime Service revealed that trucks were operating according to customer service and commercial considerations, rather than taking into account or following safe working practices. The court imposed eight offences against the company and 19 against the director of the Company and stated that the penalties imposed reflect that while the Company was the principal operator of the business, Mr Spiteri (director) was in real control and the Company was essentially a one person company.

* A version of this article was originally published in CoR Adviser. This article is © 2017 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

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
Nathan Cecil
Geoff Farnsworth
Suzy Cairney
 
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