The only potential defence to a breach of the Heavy Vehicle National Law (HVNL) is to show that you took 'all reasonable steps' to prevent the relevant breach.
The first step is to identify any likely breaches, i.e. risks, and to develop and implement appropriate measures to prevent or mitigate those risks. This article will provide guidance on how to approach and document this risk assessment.
Some of the factors that a court may consider in assessing whether you have taken 'all reasonable steps' include taking steps to:
- prevent, manage, minimise or eliminate the likelihood of a CoR breach or risk to public safety occurring;
- exercise supervision or control over other parties in the CoR involved with the load and its transportation;
- provide information, training and supervision in CoR compliance and the implementation of any CoR policy to workers;
- maintain work systems and equipment to enable CoR compliance; and
- address and remedy any instances of non- compliance.
Each of the above steps is aimed at avoiding a breach or risk of a breach occurring during business operations. But before you can do this, you must first assess the areas of your operations that give rise to the risk of a breach occurring. That is, you must conduct a CoR risk assessment.
For those CoR parties subject to duties in relation to fatigue and speed (which can include employers, prime contractors, operators, schedulers, consignors, consignees, loading managers, loaders and unloaders), the 'all reasonable steps' defence for those offences specifies that a party cannot be found to have taken all reasonable steps unless it has conducted such a risk assessment at least annually.
Four-step Chain of Responsibility risk assessment process:
- Step 1: Hazard identification – Identify the activities or areas of your business giving rise to potential CoR breaches.
- Step 2: Risk assessment – Assess the likelihood of a breach occurring and the likely severity of its impact on road infrastructure and public safety.
- Step 3: Control implementation – Develop and implement control measures to eliminate or reduce the likelihood or consequences of a breach.
- Step 4: Review/response – Periodically review the process (at least annually for fatigue and speed) and/or execute additional control measures in response to any actual breach.
When it comes to the second step, conducting a risk assessment, an effective assessment needs to consider both the likelihood and severity of any breach occurring.
The HVNL categories the severity of offences as follows:
- a risk of a party gaining a minor unfair commercial advantage over those who operate legally; and
- no risk to safety or infrastructure.
- a risk of damage to infrastructure, increasing traffic congestion and unfair competition; and/or
- some risk to safety, although not an appreciable risk.
- an appreciable risk to safety; and/or
- a more severe risk to infrastructure, greater risk of traffic congestion or a greater level of unfair competition
- a contravention of fatigue regulated work/rest times adversely affecting a driver's ability to drive safely.
How to introduce your control measures
Your CoR risk assessment process can leverage off the workplace health and safety risk assessment processes, which all businesses should have in place.
If a potential breach has a high likelihood of occurring and the outcomes of a breach will be of 'critical' severity, the risk assessment for such a potential breach would be high, meaning that appropriate high-risk control measures would need to be put in place.
Conversely, a potential breach with a low likelihood and minor severity outcomes would result in a low risk rating, meaning that low-risk control measures would be more appropriate.
The different categories of control measures typically include:
- Elimination – Removing a hazardous activity or process altogether;
- Substitution – Replacing a hazardous activity or process with a less hazardous one;
- Physical modification – Modifying the environment or equipment physically to reduce risk; and
- Behavioural modification – Providing additional training, instructions and supervision to workers, site visitors and those handling relevant road cargo.
In many instances, it may be appropriate to implement a combination of control measures across your different areas of risk.
Remember, document the risk assessment process and all steps taken under it (including work practice modifications and training) and keep those records for a minimum of three years (at least six years is recommended).
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.