Update on Chain of Responsibility provisions - Cootes Transport driver acquitted
The Heavy Vehicle National Law (HVNL) came into effect in NSW on 10 February 2014 and applies to people who own or operate, or work with people who own or operate, vehicles of 4.5 tonnes or more.
The HVNL came about, in part, as a means to minimise the risk of horrific road tragedies involving heavy vehicles; such as the crashes involving Lennon’s Transport in 2012 at Menangle, which resulted in three deaths, and in 2013 at Mona Vale, involving Cootes Transport, which resulted in two deaths and five people being injured.
The accident at Mona Vale led to an investigation into the entire Cootes fleet, which resulted in Cootes, in 2014, being fined $440,900 by the NSW courts, and $50,250 by the Victorian courts for hundreds of safety breaches and defect notices.
The driver of the Cootes truck was charged with dangerous driving occasioning death and grievous bodily harm. The judgment in relation to those criminal charges was handed down on Friday, 19 February 2016 - the driver was acquitted. The driver had relied on evidence that his brakes failed on a downhill section of Mona Vale Road, arguing that the cause of the accident was defective brakes (which meant that he could not slow down and hence was driving over the speed limit before the accident), and not dangerous driving. It seems that this evidence meant that the jury had at least a reasonable doubt that he was driving dangerously.
The HVNL contains “Chain of Responsibility” provisions, which render all those within the chain of responsibility potentially liable for the same incident. Those that fall within the chain of responsibility include operators, employers, contractors, consignors, consignees, loading manager, loader, packer, scheduler and unloaders. For example, each one of these individuals can be liable for fatigue related offences by the operator/driver, under the HVNL because each individual has the potential to affect how long the operator is on the road, and whether or not they are able to take the necessary minimum work breaks to avoid fatigue.
However, if the individual can show that they didn’t know, and could not reasonably be expected to have known of the contravention concerned and they took all reasonable steps to prevent the contravention or there were no steps that could reasonably be expected to have been taken to prevent it, then they have what is called the “reasonable steps” defence.
In the case of Cootes, Cootes knew, or should have known, that there were defects with many of the trucks in their fleet, and with servicing - drivers had told them of problems with the trucks, and a proper maintenance program should have picked up problems. Therefore, steps should have been taken to ensure that the trucks were completely roadworthy before they allowed them to be driven.
The Cootes case demonstrates that it is important for employers to identify the risks and hazards in their workplace, and to ensure that they take all reasonable steps to minimise those risks or hazards occurring. If you fail to do this, and fail to consider where in the supply chain you lie, you could be exposing yourself to liability under the HVNL.
If you need assistance, contact our Employment Law Team: