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Are you responsible for non-compliance by third parties?

01 April 2019

#Transport, Shipping & Logistics

Nathan Cecil

Published by Nathan Cecil

Are you responsible for non-compliance by third parties?

If you engage someone else to do something or if you aren’t primarily responsible for doing something which is done by another person, you expect them to be responsible if something goes wrong. 

However, when we are talking about safety, the critical importance of the matter overrides what might make sense when safety is not at stake.

The primary duty under the Heavy Vehicle National Law (HVNL) is a shared one. Each person in the Chain of Responsibility (CoR) has a non-delegable safety duty. Those duties are concurrent, meaning that they are overlayed and run together and one person is not absolved of responsibility just because someone else shares responsibility. 

There is a current line of thought circulating that if you engage a third party to perform a task, you are automatically absolved of or meet your safety duty under the HVNL. Unfortunately, it is not this simple.

The thinking goes that if you make it clear that someone else is solely responsible for a task (e.g. loading) or engage an independent contractor to perform that task, then you have passed on or met your safety duty and they will be solely responsible for any subsequent breach of the HVNL. 

Within the CoR space, this will only be the case in limited circumstances.

The HVNL says that you can’t contract out of a duty that you owe under it. Even if you say that it is someone else’s responsibility and even if you formally engage someone else to do the task, you remain responsible for its fulfilment.

But this doesn’t mean that you are always responsible for the conduct of others. A series of Work Health & Safety (WHS) cases provides the following circumstances where you won’t be held responsible – but you have to meet all of them in order for this to apply:

  • you must not, and it must not be reasonable to expect you to have the skills or expertise to, carry out the relevant task
  • you must not play a role in carrying out the relevant task i.e. once you get your hands dirty, you can’t point the finger at the other person
  • you exercise due diligence in selecting any independent contractor to do the work or to ensure that the person on the other side who is performing the task is reasonably skilled and capable of doing so safely
  • you stipulate whatever conditions are required in order to avoid the risk of the work not being performed safely (e.g. you include in your terms of engagement that the person must perform the work safely)
  • you check, so far as it is reasonable to expect you to do so, that the other person is performing or has performed the work safely.

Provided that you implement this framework, then you can indeed discharge your safety duty. For tasks absolutely beyond your expertise, all that may reasonably be required is that you engage someone who reasonably appears to be skilled in performing the work and nothing that you see (given the knowledge that you have and which is reasonably expected of you) tends to suggest otherwise. 

However, in many instances, meeting all of the above requirements isn’t practical in the transport and logistics space. The reason is that many transport tasks are jointly performed by more than one party in the Chain and/or are interrelated. For example, you operate a loading facility and load goods onto someone else’s truck and they restrain them - but issues of mass and load restraint are dependent to some extent on how you load and the information that you provide about the goods. So, both of you contribute to the safety or lack thereof of the load and the vehicle and you can’t simply wipe your hands and say “they secured the load and drove off!”

So, provided that you can meet all of the above requirements, you may be able to wipe your hands. But, the world in practice is seldom so clean. In most cases, safety will remain a joint responsibility.

Author: Nathan Cecil

* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.

Contacts:

Sydney
Nathan Cecil, Partner 
T: +61 2 8083 0429 
E: nathan.cecil@holdingredlich.com

Geoff Farnsworth, Partner 
T: +61 2 8083 0416 
E: geoff.farnsworth@holdingredlich.com

Melbourne
Harry Kingsley, Partner
T: +61 3 9321 9888 
E: harry.kingsley@holdingredlich.com

Brisbane
Suzy Cairney, Partner 
T: +61 7 3135 0684 
E: suzy.cairney@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Nathan Cecil

Published by Nathan Cecil

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