24 May 2022
There seems to be ongoing uncertainty over what is required under the primary safety duty in any particular circumstance. So, do you have a duty to inspect and confirm the maintenance of vehicles of your contractors? Generally, those that do not own or operate vehicles do not need to start checking under the bonnet or carrying out dipstick tests. However, if you should reasonably notice obvious risks associated with maintenance, or indeed any other Chain of Responsibility (CoR) aspect, you are required to do something about it.
For example, a business operates a facility from which its goods are consigned by truck and observes that the vehicle supplied is obviously (i.e. to a reasonable observer) unroadworthy, and that the driver does not at all restrain the load before departing. It observes the same thing the next day, and the next. Is the business ‘ensuring so far as reasonably practicable the safety of its transport activities’ including ensuring that its conduct does not directly or indirectly encourage the driver or another party in the Chain to breach the Heavy Vehicle National Law (HVNL)? In short, no.
If you observe obvious risk (or one which ought reasonably have been observed) where a reasonably available solution (such as engaging with the transport operator) could eliminate that risk, it is considered to be ‘reasonably practicable’ for you to take steps to reduce that risk.
Each party in the Chain must ensure, so far as is reasonably practicable, the safety of their transport activities.
Additionally, the safety of transport activities relating to a heavy vehicle is the shared responsibility of each party in the Chain for the vehicle.
This is a shared responsibility to ensure, so far as is reasonably practicable, that business practices, requests or demands, delivery requirements, schedules, packing, loading or unloading practices do not directly or indirectly cause or encourage:
Whether a person has responsibility depends on:
Transport activities often involve interactions with third parties who have a shared responsibility for safety. A safety duty under the HVNL may not be transferred to another person, so it is essential that all parties in the Chain cooperate to control, eliminate or minimise any shared transport risks.
A third party may be a business or an individual not directly employed by you that your business interacts with in the performance of its transport activities. A third party may perform some transport activities for or alongside you. These interactions can take place between you and, for example:
The level of responsibility that each business or person has depends on their capacity to influence and control the particular activity, including decision-making relating to the activity. Capacity, in general, means the ability to have an effect on something or the behaviour of someone. Capacity in this context means the ability to control, eliminate or minimise the safety risk.
The more control and influence your business has over a task (e.g. loading or unloading), the greater responsibility your business has to ensure the task is done safely.
Parties in the Chain only have a positive duty to notify regulators of ‘notifiable incidents’ under work health and safety laws. However, you should consider how to ensure the safety of your transport activities and/or ensure that you do not encourage or reward others in the Chain to breach their duties. Sometimes this requires you to notify and engage with other parties (not notify the regulators) when you detect a compliance problem.
Businesses do not need to micro-manage contractors, try to run their compliance function for them and audit everything they do. But, the HVNL will not permit you to avoid responsibility for unsafe practices merely by saying, “my contractor did that, not me”, especially if the problem arose as part of a process in which you were involved. If you could and should have readily identified that there was a problem, you cannot turn a blind eye to it.
Parties in the Chain need to identify, analyse, evaluate and mitigate general risks associated with heavy vehicle supply chain safety under the HVNL. This includes monitoring or managing contractors, as appropriate.
You will be required to monitor risks in situations when you have limited control to manage the risk. This may be because:
You will be required to manage risks in situations when you possess the knowledge, skills and experience to manage the risk. This may include scenarios where:
Executive duties of due diligence will also extend to the appropriate monitoring or management of contractors and, in this context, requires executives to:
Consider the following when dealing with third parties:
So, as a general rule, you are responsible for managing the safety of your own transport activities and you are not responsible for managing the compliance of your contractors or other third parties in the Chain. Despite this, where a contractor performs tasks for you and under your direction, control or influence or where you jointly perform a transport activity with a third party, you are responsible for engaging with that party to satisfy yourself that they know what they are doing and monitoring their performance to the extent necessary to ensure that they are doing so.
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Author: Nathan Cecil
The information in this article 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 article is accurate at the date it is received or that it will continue to be accurate in the future.