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30 July 2018

Chain of responsibility: Supreme Court increases penalty for ‘severe risk’ overloading offence

In a recent decision, the Tasmanian Supreme Court increased the penalty imposed on a transport operator four-fold after finding that the operator had a ‘cavalier attitude to compliance’.

In a recent decision, the Tasmanian Supreme Court increased the penalty imposed on a transport operator four-fold after finding that the operator had a ‘cavalier attitude to compliance’.

What happened in this case?

Redpath Haulage Pty Ltd was charged with a ‘severe risk’ overloading offence as the operator of a heavy vehicle, namely a tandem axle pig trailer towed by a three-axle rigid truck.

The mass of the tandem axle pig trailer with its load measured a mass of 18.8 tonnes, exceeding the mass limit of 15 tonnes for that heavy vehicle by 3.8 tonnes and representing 125.3% of the allowable mass for the trailer.

Redpath Haulage pleaded guilty. The Magistrate imposed a fine of $850. The Director of Public Prosecutions appealed, arguing that the sentence was manifestly inadequate.

The penalty on appeal

On appeal, the Tasmanian Supreme Court found that the Magistrate failed to take the following into account:

  • Redpath Haulage had no system in place to ensure compliance. Redpath Haulage could not simply delegate its responsibility to the person loading the vehicle.
  • Redpath Haulage had significant time between the date of the offence and the date of the court proceedings to implement a system for the management of the risk of overloading but had not done so. The Court found that ‘compliance remained a matter of chance based upon estimation or guess work’.
  • Redpath Haulage had three prior convictions for overloading, two in 2008 and another in 2014, although each was dealt with on an infringement notice and was therefore less serious than the offence before the Court. According to the Court, this evidenced a ‘cavalier attitude to compliance with the relevant standards’.

The Court found that the penalty imposed by the Magistrate represented less than 2% of the maximum penalty for the offence. The Heavy Vehicle National Law provides that if the company is found guilty of an offence, the Court may impose a maximum fine equal to five times the maximum fine for individuals. The maximum penalty in this case was therefore $62,500.

In determining an appropriate penalty, the Court took into account that the company was not profitable and had made losses in 2016 and 2018. Having regard to Redpath Haulage’s financial circumstances, but also the need for a penalty which served the need for general deterrence, the Court ordered the company to pay a fine of $4,500.

The Court discounted the penalty by 20% for the company’s early plea of guilty and ordered Redpath Haulage to pay $3,600.

Lessons for transport operators

As those in the transport and logistics industry would know, changes to the chain of responsibility provisions in the Heavy Vehicle National Law are set to commence on 1 October 2018. Under these changes, there will be significant penalties (up to $3 million for corporations) associated with failing to ensure, so far as is reasonably practicable, the safety of transport activities.

This case serves as a timely reminder for transport operators to review their mass, dimension and loading policies and procedures to ensure that comprehensive measures are in place to manage the risks associated with their business activities.

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