Recent HVNL amendments cast a wide net of liability for parties in a “chain of responsibility for a heavy vehicle

Parties to a “Chain of Responsibility” of a heavy-vehicle who breach new safety duties face penalties of up to $300,000 and 5-years imprisonment under the HVNL.

The Heavy Vehicle National Law

The Heavy Vehicle National Law (HVNL) is the primary legal framework for the use of heavy vehicles on Australian roads. Originally commencing in Queensland in 2012, the HVNL has since been adopted and applied by all but two Australian jurisdictions, with WA and NT being the exceptions.

The Chain of Responsibility Amendments

Since its implementation, the HVNL has been subject to a series of amendments, each principally motivated by a desire to improve the safety of people involved in the transport industry.

The latest of these amendments, which commenced on 1 October 2018, has extended the civil and criminal liability of parties involved in the chain of responsibility for a heavy vehicle (the COR Amendments).

Broadly, the COR Amendments have imposed –

  1. a primary duty of care upon each party in the chain of responsibility for a heavy vehicle to ensure the safety of their transport activities;
  2. a due diligence obligation upon executive officers of certain entities to ensure, in part, that the entity implements appropriate processes to eliminate or minimise hazards and risks relating to transport activities; and
  3. comprehensive penalty provisions for breaches of the above duties.

Who is a party in the Chain of Responsibility?

The definition of “parties in the chain of responsibility for a heavy vehicle” is broad and includes any of the following–
– the employer of the driver;
– persons who engage the driver to drive the vehicle under a contract for services;
– an operator of the vehicle;
– a scheduler of the vehicle;
– a consignor and/or consignee of any goods in the vehicle;
– a packer of any goods in the vehicle; and
– a loader, unloader and/or loading manager for any goods.

Primary duty of care

Each “party in the COR for a heavy vehicle” is under a duty to, “so far as reasonably practicable”, ensure the safety of their transport activities relating to that vehicle.
The scope of this duty includes an obligation to minimise (and where reasonably practicable, eliminate) public risks. What constitutes a “public risk” is conceptually quite broad and includes “safety risks” generally.

Further, parties subject to this duty must not directly or indirectly, cause or encourage a driver of a heavy vehicle to contravene any provision of the HVNL. An obvious example of a direct contravention would be if a prime contractor of a driver of a heavy vehicle encouraged that driver to exceed the speed limit.

Given that the duty extends to prohibitions of indirect encouragement, a contravention would also likely include employment policies that tacitly encourage a driver of a heavy vehicle to speed or drive while fatigued. For example, a policy requiring a driver to perform a job that is logistically impossible without speeding or driving while fatigued would likely be a contravention.

A party who breaches this duty faces penalties ranging from $50,000 for lesser offences, to up to $300,000 ($3 million for Corporations) and 5-years imprisonment for the most reckless contraventions.

Duties facing executive officers

The COR Amendments also extend to “executive officers” of corporations, partnerships and unincorporated bodies, who must take reasonable steps to ensure the entity has in place, and exercises, processes aimed at eliminating or minimising hazards.

Depending on the type of entity, an “executive officer” includes a person who takes part in the management of the entity.

An executive officer who breaches their due diligence duties faces the same penalties as those stated above and may be convicted of an offence personally.

Take away points

– Individuals and businesses involved in the transport industry should familiarise themselves with the new HVNL duties.
– Transport businesses should implement due diligence polices to ensure compliance with their Primary Duty obligations.
– Transport businesses should also consider reviewing current contractual and employment policies to ensure they do not indirectly encourage contravention of the HVNL.
– Helpful HVNL checklists are available on the government website , however these alone will not satisfy compliance with the new duties.

Author: James Remington

 

  1.  Heavy Vehicle National Law (Queensland), s 5 (as applied in Victoria under the Heavy Vehicle National Law Application Act 2013 (Vic) s 4.
  2. Heavy Vehicle National Law (Queensland), s 26C.
  3. “Ibid” s 5.
  4. https://www.nhvr.gov.au/files/201703-0484-cor-check-list.pdf.