New chain of responsibility provisions are biting

19 December 2018

Rigby Cooke Lawyers partner and litigation and dispute resolution specialist Elizabeth Guerra-Stolfa recently warned of the consequences to members of the supply chain for failing to be prepared to meet their obligations under the new Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) which came into effect on 1 October 2018.

The primary duty imposed by the CoR provisions makes it so that if there is a breach of the HVNL provisions, all members of the supply chain may be liable for loss or damage caused by those breaches as well as the penalties that may flow.

Those enforcing the new CoR provisions will not hesitate to pursue prosecutions and impose penalties. Members of the supply chain need to sit up, pay attention and change their practices to avoid prosecution and penalties.

With the imposition of the new primary duty under the CoR provisions practices which disregard the HVNL will no longer be tolerated. The following are examples of some offending scenarios:

  • Transport operators who appear to have policies and procedures in place in relation to mass limits but do not follow those policies by failing to equip their vehicles with scales or by not allowing the vehicles to travel to weighbridge facilities in order to save time
  • Transport operators who discourage visual inspections of loads because this causes delays
  • Transport operators who ignore vehicle tampering (eg. speed limiters on vehicles) because that tampering allows for compliance with very strict KPIs on delivery times
  • Consignees who have contracts which on paper appear to comply with CoR laws but impose unrealistic delivery times and schedules on transport companies encouraging them to breach HVNL provisions
  • Schedulers who have been given CoR training and are aware of their obligations but nevertheless continue to impose schedules (and in some cases, incentives) which concede to unreasonable expectations of consignors and consignees and leave the transport operator and driver exposed to liability

As predicted the enforcement of the new CoR provisions has begun.

On 6 November 2018 New South Wales Police reported that a transport company, Hari Om Transport, was found to have allowed unsafe vehicles to operate. An investigation into the fleet of vehicles run by Hari Om began after one of the trucks lost control and collided with several cars in the Wollongong McDonald’s car park injuring 3 people including the driver.

The 10 vehicle fleet was subsequently inspected and was found to have a range of safety and compliance issues including faulty brakes, bald tyres and seatbelt defects. Defect notices were issued against each of the 10 vehicles.

In relation to the incident New South Wales Police, Traffic & Highway Patrol Command Assistant Commissioner Julie Middlemiss said, “It doesn’t matter what kind of vehicle it is – if it is found to be unsafe then it has no place on our roads”.

New South Wales Roads and Maritime Services Director of Compliance Roger Weeks said, “Safety will always be our highest priority and we will continue to work with industry to ensure compliance levels can be lifted and systemic safety failures stamped out.

“But make no mistake, if they are found to be breaching the law, Roads and Maritime will ensure they are held accountable for their actions with the full force of the law.”

This case is an example of the real world impacts failure to comply with HVNL safety requirements can have, and serves to act as a warning to those members of the supply chain who are prepared to disregard their obligations.

Authorities have made it clear that they will not hesitate to prosecute and impose sanctions against those who would ignore or fail to comply with the HVNL provisions and risk public safety.

If readers are unsure of their obligations under the HVNL or are unsure of whether their current practices meet those obligations, they should seek legal advice.