02 December 2020
If Chain of Responsibility (CoR) was a board game, we and a client of ours just won it.
Our client is in the construction sector and operates heavy vehicles.
The business employed the loader and driver of a truck that it owned. They were loading construction fill materials. Neither the truck nor loading equipment had scales.
The truck was overloaded at 121 per cent.
The business was prosecuted for the overload, with a maximum potential penalty of about $59,000. Noting the absence of scales and the significance of the overload, the Prosecutor pressed for a mid-level penalty.
Considering only the above, the Prosecutor was probably on the money. But, the background facts changed the story considerably.
The business had identified that it had obligations under the Heavy Vehicle National Law (HVNL) and had designed and implemented compliance policies and practices to meet those obligations.
The business had previously calculated load mass/density profiles for the bulk goods that it typically carried, e.g. where a specified volume of each product is check-weighed once loaded to ensure that loading that volume of product doesn’t exceed mass limits. Unfortunately, this product was contaminated with foreign material that was heavier than the load mass/density profile.
The business was an accredited Trucksafe operator and had gone through the rigorous compliance and safety induction audit to obtain accreditation.
As part of a general review and re-assessment, the business engaged us, as independent experts in the area, to conduct a boardroom briefing for the Executive on the business’ and Executive’s duties – so the Executive was actively engaged in ensuring that the business was seeking to meet its HVNL obligations. After that, the business engaged us to conduct a HVNL compliance review and gap analysis. We provided our report and conducted a boardroom debrief of the major findings. The business prepared an action plan with 58 items for development (for clarity, this did not represent 58 items that were necessary for the business to implement to achieve a system that could ensure compliance with the law, but represented a number of things that the business could implement to enhance and further develop its existing system). The business was part-way through ticking off and implementing those items when the above incident occurred. As part of that action plan, but after the incident, the business installed truck scales and rolled out refresher training on loading procedures and checks.
At the hearing, we took the Judge through all of these matters in detail to demonstrate the full extent of the business’ proactive, genuinely substantive and multi-layered approach to HVNL compliance.
The Judge commented that although the nature of the offence gave rise to serious safety risks, no actual harm arose. Further, having regard to the considerable focus and attention that the business has brought to bear on these areas, at considerable cost and commitment, both before and at the time of the incident and the considerable measures implemented by the business as a result, he was satisfied that the risk of such an offence occurring in future was low. In those circumstances, where the business was and continued to do the right thing, it would not be appropriate to impose a penalty or record a conviction against the company.
Did the business get off ‘scot-free’? Absolutely not! The business invested significant commitment time and money in HVNL safety – and it paid off.
We usually focus on cases where businesses don’t do the right thing and are punished. It is a huge pleasure to report on a case that illustrates how to ‘do’ HVNL compliance properly.
We’ve worked with a huge number of businesses to help them implement HVNL compliance frameworks similar to the above. Until this case, our approach hadn’t been tested in court – so it is fantastic to see that the approach that we follow has received the court’s tick of approval.
Author: Nathan Cecil
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.