Chain of Responsibility (CoR) was introduced in 2005, and substantially amended in 2012 with the introduction of the Heavy Vehicle National Law (HVNL). It is due to be extensively remodelled again in 2016 to "better align with national safety laws, improve compliance and simplify enforcement". So what changes can you expect and what impact are they likely to have?

The concept of Primary Duties

Existing obligations will be reformulated as 'primary duties'. Each CoR party under the HVNL will now have a primary duty of care to ensure, so far as 'reasonably practicable', the safety of road transport operations.

Under this formulation, what is considered reasonably practicable will be key. Given the stated intention is to align CoR with the Work Health and Safety Act (WHS Act), we can expect 'reasonably practicable' to be defined in similar terms to the WHS Act, which states:

"reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:
  1. the likelihood of the hazard or the risk concerned occurring; and
  2. the degree of harm that might result from the hazard or the risk; and
  3. what the person concerned knows, or ought reasonably to know, about:
    • the hazard or the risk; and
    • ways of eliminating or minimising the risk; and
  1. the availability and suitability of ways to eliminate or minimise the risk; and
  2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."

Farewell all reasonable steps

It is unlikely anyone will mourn the passing of the 'all reasonable steps' defence. As recognition that the bar had perhaps been set too high, the concept of offence/defence is no more, and defendants will no longer be required to prove that they took 'all reasonable steps' to prevent the breach from occurring. Rather, they will be required to demonstrate that they did what was 'reasonably practicable' (see above) to prevent/avoid the breach.

No cheat sheets

The HVNL contained examples of the sorts of things that a person would need to demonstrate to prove that they had taken 'all reasonable steps' to prevent a breach of the law. This was considered to promote a 'tick-box' approach to compliance. This guidance is perhaps less necessary under the new formulation. It does, however, put the focus back on individual businesses to perform their own risk assessments; a one-size-fits-all approach is unlikely to be effective.

These and other proposed changes will have a significant impact on CoR in 2016.

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.