Reputation ruined after one unexpected breach

By: Sarah Marinovic*


LEGAL OPINION: Staying on the right side of the Heavy Vehicle National Law when things don’t go to plan

Reputation ruined after one unexpected breach
Good professional operators can find themselves hauled before a magistrate to explain why they’re not a danger to society.

 

One of the more rewarding parts of my job is working with experienced drivers and operators. These are the people who’ve been in the industry for years and have a lot of knowledge to share.

For these people, finding themselves in breach of the Heavy Vehicle National Law (HVNL) is a particularly difficult experience. It’s hard being prosecuted for a mistake after years of doing the right thing.

I’ve been reflecting on what causes good experienced drivers to find themselves on the wrong side of the HVNL. Often the common thread is that something unexpected has happened on their trip to throw out their usual routine.

It could be that they left a couple of hours later than usual because their truck was in at the mechanic’s or they had to stop to avoid driving through heavy rain; or they took a load for a new contractor which weighed more than it was supposed to; or a breakdown meant using a different truck than they otherwise would.

When these things happen, it’s easy for your work or rest hours to be thrown out or your truck to be overloaded. Suddenly, good professional operators find themselves carted before a magistrate to explain why they’re not a danger to society.

This bothers me because it is these very drivers and operators who are keeping society safe and functioning and have done so for years. Plus, often the exceptional situations that have brought them to court are not within their direct control, or flow from trying to do the right thing.

Unfortunately, while explanations like ‘I was trying to do the right thing’ or ‘my contractor let me down’ might reduce the fine, it isn’t usually a defence to charges under the HVNL.

Accidental breaches

As always, prevention is the best cure. So being on the lookout for situations that change your usual routine and having strategies to adapt to these situations are important steps in making sure you don’t accidentally breach the law.

Here are a few things I’d recommend:

1. If your routine changes, plot out your work and rest hours for the day. As soon as you realise that you’re starting your trip at a different time, or if you’ve had to stop unexpectedly, it’s a good idea to double check your work diary. Check when your 24-hour period finishes and make sure you have enough time to fit in your major rest break. Also double check that you’re not accidentally starting too early the next day, as if this is still within the previous day’s 24-hour period you could find yourself over your allowable work hours.

2. Use a driver fatigue app that tracks your work diary in real time. There are a few of these out there, and they’re not too expensive. If you use them to track trips, particularly when the timing is out of the ordinary, they will tell you when you have to stop to comply with fatigue laws and will also tell you that you can’t drive yet if you need more rest-avoiding breaches before they happen.

3. Know the limits of any truck you use. I often see issues arise where the usual truck for a job is out of action and another is substituted in for a run. Know the load and dimension limits for each of your vehicles, including axle weights, and keep on top of registration to avoid last minute changes leading to big fines.

4. Go to the nearest weigh station before leaving on your run. I know this sounds impractical, but if you’re carrying a load that someone else has packed and you have any reason not to trust the weights they’ve given you, heading to the nearest weigh station or to somewhere with scales before you head off can save you a fortune. I have seen so many situations where contractors have packed loads badly or simply lied on the paperwork about what containers or pallets weigh and this alone may not be enough to get you off if you’re pulled over as the driver in breach. What will get you off though is having taken all reasonable steps to avoid the breach. To you it might not sound reasonable, but to Transport for NSW and to a court it is: you need to weigh any load that you don’t trust.

5. If it is economical, get scales installed on your trucks. I get it, this isn’t cheap and is not for everyone, but it is a sure-fire way to avoid mass breaches.

If you follow these tips hopefully you will never find yourself in front a court. That said, if you do, or if you just want some advice, that’s what I’m here for.

*Sarah Marinovic is a principal solicitor at Ainsley Law – a firm dedicated to traffic and heavy vehicle law. She has focused on this expertise for over a decade, having started her career prosecuting for the RMS, and then using that experience as a defence lawyer helping professional drivers and truck owners. For more information email Sarah at sarah@ainsleylaw.com.au or phone 0416 224 601.

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