Australia: Heavy Vehicle National Law: Oops! What do I do when things go wrong?

Last Updated: 22 May 2019
Article by Rebecca Niumeitolu

Most Read Contributor in Australia, July 2019

Proper responses to Chain of Responsibility (CoR) incidents are critical to effectively minimise further safety risks to drivers and the public, minimise your exposure to liability and avoid the prospects of repeat incidents in the future.

Long gone are the days when transport businesses could 'fudge' the gist of their response protocols relating to CoR incidents. Under the primary duty and the executive duty it is mandatory that such policies and procedures are implemented and are tailored to a business' transport activities.

Many CoR non-compliance events arise from, result in or are detected as a result of incidents or accidents. In such cases, you may need to also integrate emergency response procedures into your CoR incident response procedures.

A failure to implement effective CoR incident response protocols risks, among other things, a maximum penalty of $3 million for corporations and $300,000 or five years imprisonment for individuals for category 1 breaches of the primary duty. Moreover, given that CoR incident response protocols form such a fundamental role in CoR parties' performance of their Heavy Vehicle National Law (HVNL) obligations, you can bet that a business that fails to have such protocols is bound to raise the alarms to investigators that they have other non-compliance issues.

Key ingredients for a CoR incident response protocol

  • contact emergency services (if required)
  • administer first aid (if required)
  • secure the incident site
  • draw up an incident report
  • implement remedial measures.

Emergency services

The emergency response component of your CoR incident response protocol should identify contact details of relevant emergency services.

Different CoR breaches will give rise to different requirements to contact emergency services and report incidents to authorities.

For example, if a driver is involved in a traffic collision and a person is seriously injured, then it is prudent to contact emergency services to render the care required to the injured person. In fact, some laws require that drivers stay at the scene. Section 287 of the Transport Operations (Road User Management- Road Rules) Regulation 2009 (Qld) stipulates that the driver must stop at the scene of the crash and give the drivers' details to the Queensland Police Service if someone is killed or injured in the crash.

On the other hand, a CoR breach which does not result in harm or injury or any collision, such as a breach of a drivers' rest hour requirements or a failure to keep certain work diary records as required by the HVNL, does not give rise to the same requirements to contact emergency services or report breaches to authorities. That said, even where there is no obligation to report a breach, there is still an obligation to remedy it.

In all circumstances, to assist with addressing compliance in a systematic way you should ensure that you:

  • draw up an incident report
  • report the breach to executives
  • implement remedial measures where required (discussed below).

Administer first aid

The emergency response component of your CoR incident response protocol should identify persons who are qualified in your business to administer first aid if it is required.

Secure the site of the incident

Your CoR incident response protocol should take account of the different steps persons involved in the accident should take if there is CoR breach which impacts on the physical safety of the driver, other CoR parties or the public.

When considering guidelines for persons at the scene to take, questions which can guide the development of your protocol are:

  • what type of CoR incidents might your transport activities give rise to or could your heavy vehicles be involved in that could risk the safety of drivers, CoR parties or the public when on the road?
  • who are the points of contact in the business who could best assist a driver or persons involved in the incident to effectively respond to a CoR breach? For example, if a driver detected a minor defect could they pull over to a site nearest to them where they would not interrupt other traffic flows? Could they contact the scheduler to assist them in locating that site?
  • if the heavy vehicle is stationary, what measures need to be implemented to ensure that others present are not exposed to safety risks? How can you ensure that no one enters the site unless qualified and equipped to do so?

Draw up an incident report

Incident reports are crucial to devising the appropriate remedial action to be taken by businesses to avoid future CoR incidents, to keep records in the event of future claims against your business or its employees, to keep records in the event that your business has claims against third parties or from insurers and to establish compliance with HVNL obligations to authorities.

Incidents reports should cover:

  • the time and date of the incident
  • details of all persons involved in the incident and their position in the business
  • the factual details of the incident and any injuries, deaths or property damage suffered as a result of it
  • all parties who were or could be affected by the incident
  • the relevant supervisor in charge at the time of the incident and to whom the incident was and should have been reported
  • actions taken to respond to the incident.

Implement remedial measures

Incidents should be reported to executives and any other persons identified to manage emergencies in the business for review.

If the causes of the CoR incident were the result of the business' conduct or that of its personnel then consideration should be given to whether further remedial measures need to be implemented to avoid further CoR incidents in the future.

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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