On October 1, 2018 changes were made to Heavy Vehicle National Law. The change does not introduce new duties but clarifies the way existing duties to ensure the safe operation of heavy vehicles are be interpreted, and how the legislation will be applied in the event of an incident.
The changes are intended to ensure others, who impact on the safe operation of a heavy vehicle, such as consignors, consignees, loaders, schedulers, transport operators, are held responsible in the event that their actions contribute to an incident or create a risk involving a heavy vehicle.
Prior to Oct 1, 2018, in the event of an incident a party in the chain was assumed to be guilty of an offence under the NHVL unless they could demonstrate that they had taken all reasonable steps to prevent the incident or there were no steps the person could reasonably be expected to have taken to prevent the incident. Essentially guilty until proven innocent.
This has been modified to require that parties eliminate or reduce risk so far as is reasonably practicable and shifts the onus of proof onto to the prosecution to prove that a party in the chain has failed in their duty. Essentially innocent until proven guilty.
The changes bring the interpretation of duties owed under the NHVL into line with the interpretation of duties owed under workplace health and safety legislation.
What this means is that the following factors will be considered when determining if a party has met their duty to ensure the safe operation of a heavy vehicle so far as is reasonably practicable;
- The seriousness of the risk involved
- The likelihood of the risk occurring
- The knowledge the party had about the risk and ways of controlling it that thy party had or should have had
- The suitability of implementing a particular control
- The cost of a particular control
This duty has been considered by the High Court and;
- Duties are limited to matters over which a party has control.
- not requiring employers to ensure accidents never happen
- The Court must look at the facts of each case as practical people would look at them not with benefit of hindsight or the wisdom of Solomon
- Such a responsibility can only be discharged by taking an active imaginative and flexible approach to dangers
- Questions of safety and practicability in many cases raise issues of common sense rather than specialist knowledge.
- Does not mean doing anything possible.
- the capacity to influence and control another party is limited by the cost and effort of controlling and directing the other party,
- a party engaging an independent contractor is entitled to rely upon the expertise of that contractor to manage the risks arising from the contractor’s operations.
So just because you are in the chain you are not assumed to have control over others in the chain. For example, loaders must ensure loads are safe, and loaded properly but are not responsible for driver conduct on the road such as speeding, or breaches of road rules or consignors and consignees are entitled to rely on transport operators to manage vehicle safety and driver fitness for work.