OPINION: If you own or take part in running a transport company, you are sitting on a potential time bomb
The much-vaunted Chain of Responsibility (CoR) is something we have been hearing about for some time now. In 2018, the Heavy Vehicle National Law (HVNL) was amended to include CoR as a concept developed out of the recognition that unlawful behaviours by truck drivers may be influenced and are often controlled by other parties other than the driver. A truck driver is not a link in the Chain of Responsibility, although they are often prosecuted when other parties have a hand in the offending behaviours.
The parties in the Chain of Responsibility are:
• an employer
• a prime contractor – if the vehicle’s driver is self-employed
• an operator of the vehicle
• a scheduler for the vehicle
• a loading manager for any goods in the vehicle
• a loader and/or unloader of a vehicle
• a consignor of any goods for transport by the vehicle
• a consignee of any goods in the vehicle
• a loader and/or unloader of any goods in the vehicle.
High penalties
Before 2018, an accident, incident, or road offence had to occur before executives could be held liable. Under CoR now, all parties are required to exercise ‘due diligence’ to ensure they comply with the Safety Duty requirements under section 26 of the HVNL. In short, the HVNL now expects parties to take a proactive rather than a ‘reactive’ approach to safety with eye-watering high penalties now available.
The maximum penalty for a breach of HVNL section 26F Category One offence for an incorporated body is $3,546,390. For an individual, it can mean two years in prison coupled with a maximum fine of up to $377,639.
Remember also, HVNL section 26E also provides for prohibited requests and contracts. A party in the CoR must not ask, direct, or require (directly or indirectly), nor enter into a contract that requires the driver of a heavy vehicle or a party in the chain of responsibility to do or not do something the person knows, or ought reasonably to know, would have the effect of causing the driver –
(a) to exceed a speed limit applying to the driver; or
(b) to drive a fatigue-regulated heavy vehicle while impaired by fatigue; or
(c) to drive a fatigue-regulated heavy vehicle while in breach of the driver’s work and rest hours option; or
(d) to drive a fatigue-regulated heavy vehicle in breach of another law in order to avoid driving while impaired by fatigue or while in breach of the driver’s work and rest hours option.
Wise words
The CoR provisions are now starting to take effect, with some important recent court decisions sure to send a chill down the spines of collective parties in the CoR around the participating jurisdictions. One such decision is Transport for New South Wales v De Paoli Transport Pty Ltd [2022] NSWSC 1678 (09 December 2022) whereby Transport for New South Wales appealed against the leniency of sentences imposed by the Local Court, in respect of the company, a director and an employee for a breach of HVNL section 26C.
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In the Local Court, the Magistrate made the following observations:
“The best system in the world can, at most, minimise. It will never eliminate because as long as trucks are driven by humans it will never minimise. As long as trucks are driven by humans on roads shared by all the other hat-wearing caravan haulers out there, it will never [be] eliminated. It will be minimised or, hopefully minimised, but that’s an aspirational goal, effectively, again, a conceptual framework, with impossibility as its benchmark, with the greatest respect …
“Anyway, leave that to one side. I’m not a trucking aficionado. In fact, I don’t have much time for the matter as such, but I’ll put aside those feelings. I’m not a person in one camp or a person in the other camp, but I am a road user and have been for probably more than anyone else here in – perhaps, not everybody in the courtroom. I’ve been there and done that and seen this and that. I’m aware of those things of minimisation, not elimination. No system in the world would eliminate something. Where do we see evidence of that? Every time you open your eyes in the morning, there it is in front of you. It’s called life.”
Most of us will think it makes sense. However, Transport for NSW appealed the decision to the Supreme Court of NSW and the fines were increased for the company, $15,000 to $180,000 and the individual fines upped from $6,000 and $3,000 to $15,000. This case can be distinguished to a certain extent as the respondent (De Paoli Transport Pty Ltd) was insured against prosecution and penalties.
Take note, insurance companies, HVNL section 742 prohibits such insurance contracts and renders them void.
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Another recent Queensland decision, Department of Transport and Main Roads v NM & AA Foley Contracting Pty Ltd [2023] QMC 5 resulted in a single fine of $1,200,000 being imposed upon the company.
We believe this single fine exceeds the jurisdictional limit for the Magistrates Court in Queensland, even if the fine was for multiple offences. The decision was appealed to the District Court, however, the original conviction and fine were confirmed.
What this tells us is that the provisions in the Law such as the ‘Master Code’ allow for a very broad sword to be applied. There doesn’t have to be an accident or even a close shave. All it takes is for a prosecuting authority to get a sniff or suspicion that something isn’t being done that they feel is within the ‘reasonably practicable’ sphere.
Machiavellian twists
Highway Advocates recently finalised a long-running case for a Victorian regional transport company originally charged with the most serious charge under the HVNL, section 26F, whereby if an individual commits the offence, the maximum penalty is five years in prison and a maximum fine of $377,639. For a corporation, the maximum penalty is a fine of $3,546,930.
Highway Advocates engaged in long-running negotiations with the National Heavy Vehicle Regulator (NHVR) and the result in the Magistrates Court was a conviction and fine of $35,000 for the company and a non-conviction and fine of $6,500 for the individual involved. Space precludes us from telling the complete story here, but it certainly has some Machiavellian twists and turns.
So, remember this, if you own or take part in running a transport company, you are sitting on a potential time bomb.
Contact Highway Advocates on our new number 1300 ADVOCATE to take the first step in protecting yourself against potential prosecution down the track.
Together, we continue this remarkable journey, forging ahead as advocates for justice in the world of heavy vehicle law.
Highway Advocates is keeping you on the road and now helping you in more ways than ever before.
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*ROBERT BELL and his team of legal professionals are Highway Advocates, a focused legal practice dealing with heavy vehicle offences throughout Australia. Robert is an ‘industry insider’ with a wealth of transport sector experience. He is the guiding force behind the successful outcomes that Highway Advocates consistently achieve. Contact Highway Advocates at admin@highwayadvocates.com.au or 0488 01 01 01. Visit their website at www.highwayadvocates.com.au