In October 2018, changes were made to Heavy Vehicle National Law. The changes clarify how existing duties of parties in the chain of responsibility (COR) are interpreted.
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The changes ensure anyone who impacts on the safe operation of a heavy vehicle—such as consignors, consignees, loaders, schedulers and 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 the changes, in the event of an incident a party in the chain was assumed to be guilty of an offence under NHVL unless they could demonstrate that they had taken all reasonable steps (the reasonable steps defence) to prevent the incident, or that there were no steps the person could reasonably be expected to have taken to prevent the incident—essentially guilty until proven innocent.
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The changes require that risks to the operation of a heavy vehicle are eliminated or reduced so far as is reasonably practicable, and shifts the onus of proof onto the prosecution to prove that a party in the chain has failed in their duty—essentially innocent until proven guilty.
This brings the interpretation of the duties into line with workplace health and safety legislation which considers the following factors when assessing compliance:
- 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 they had or should have had
- The suitability of implementing a particular control
- The cost of a particular control
Reasonable practicability has been considered by the High Court and the Court observed that:
- Duties are limited to matters over which a party has control.
- The duty does not require 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 (eliminate or reduce risk so far as is practicable) can only be discharged by taking an active imaginative and flexible approach to dangers
- The duty does not mean doing anything possible to prevent an accident but doing what is reasonably practicable
- 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
As a result, you are not assumed to have or are required to take control over others in the chain just because you are a party 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. Consignors and consignees are entitled to rely on transport operators to manage vehicle safety and driver fitness for work.