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28 May 2014

Heavy penalties for overloaded vehicles: failure to establish a ‘reasonable steps’ defence

A penalty notice for $853 for overloading issued by New South Wales Roads and Maritime Services has recently ended up the subject of argument in the Court of Appeal in New South Wales.

Western Freight Management Pty Ltd v Roads and Maritime Services [2014] NSWCA 132 (22 April 2014)

A penalty notice for $853 for overloading issued by New South Wales Roads and Maritime Services has recently ended up the subject of argument in the Court of Appeal in New South Wales. In the process, the New South Wales Supreme Court and Court of Appeal have provided useful guidance on the ‘reasonable steps’ defence.

Transport operators would be aware that so called ‘chain of responsibility’ legislation has, for some time, provided that operators and others in the transport supply chain are guilty of certain offences in relation to mass, dimensions or load restraint unless they can establish that they took ‘all reasonable steps’ to prevent the contravention.

The facts of the case

Western Freight Management (WFM) collected goods from Minova Australia in Blacktown. WFM’s driver instructed a forklift operator to distribute the load in accordance with a certain configuration provided by WFM administration. In compliance with safety procedures, the driver was unable to view the loading process as he was required to remain in a driver safety zone approximately 30 metres away from the loading dock. The load was not configured in accordance with the driver’s instructions.

After loading was complete, the driver did not examine the load on the basis that he ‘assumed (the loader) was doing his job properly’.  He admitted that, if he had been aware of the incorrect method of loading used, he would have ‘told them to load it again’. The driver also alleged that he relied upon weights shown on the consignment note and on stickers attached to the pallets. The weights according to each source were not the same.

WFM’s procedure manual made it clear that ‘You are the driver, axle weights are your responsibility’.

WFM was issued with a penalty notice for contravening section 56(1) of the Road Transport (Vehicle and Driver Management) Act 2005, dealing with breach of a mass requirement. WFM sought to rely upon section 87 of that Act, which sets out a ‘reasonable steps’ defence. That section (which has now been replaced by a similar provision in the Heavy Vehicle National Law) provides that an operator is not guilty if it can establish that it did not know and could not reasonably have been expected to have known of the contravention and had taken all reasonable steps to prevent the contravention.

Each court’s findings

At first instance, the Magistrate held that the driver’s failure to adequately check the load was ‘extremely poor practice’. Her Honour found that WFM had custody and control of the truck at all material times and that WFM could not show that it had taken ‘reasonable steps’ where its driver had not visually inspected the load.

On appeal to the Supreme Court, WFM argued the Magistrate had made errors of law, including:

  • failing to find that the prosecutor should have particularised the ‘reasonable steps’ that WFM should have taken to avoid the overloading; and
  • failing to take into account the fact that the documentation supplied to WFM’s driver was incorrect and therefore he could not necessarily have avoided overloading by visually checking the load.

Both contentions were rejected and the Court found that section 87 places the onus on the operator to establish that it took all reasonable steps and there was no legal basis for a finding that the prosecution must identify the reasonable steps that ought to have been taken. The Court also found that the existence of conflicting information in relation to weight should have put the driver on notice. If the driver had ascertained the discrepancy he could not had been satisfied that he had ‘sufficient and reliable information’ about the load’s weight.

WFM appealed to the Court of Appeal, which unanimously rejected the appeal. The Court found that, once the section 56 charge was particularised in the Penalty Notice and the Court Attendance Notice, WFM knew the charge it had to meet. It was not necessary for the prosecutor to specify the ‘reasonable steps’ WFM should have taken because no ‘ingredient’ of the overloading offence concerned taking steps to prevent the contravention.

The Court also found it was open to the Magistrate to find that the failure of the driver to inspect the load meant that the operator could not establish that ‘all reasonable steps’ had been taken to prevent the contravention.

Implications for transport operators

The appeal demonstrates the difficulties faced by operators and others in the ‘chain of responsibility’ in defending proceedings for breach of mass, dimensions and restraint provisions. For example, relying upon the professionalism of a third party without carrying out independent checks is unlikely to amount to ‘reasonable steps’.

Transport operators should carefully review their driver manuals and training and induction procedures to ensure that all drivers are aware of the need to take positive steps to:

  • check information in relation to weights and dimensions in documentation supplied by consignors;
  • query any documentation supplied by the consignor if there is any basis to question its accuracy; and
  • review and inspect any loading undertaken by third parties to ensure that the vehicle and its load do not contravene the Heavy Vehicle National Law.

Cooper Grace Ward acts for a variety of road transport operators from owner drivers to national logistics companies. We also act for heavy machinery and earthmoving contractors and for insurers involved in the heavy motor insurance industry. If you would like to discuss your business requirements, please do not hesitate to contact Gillian Bristow on (07) 3231 2925.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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