The designers of the Chain of Responsibility (CoR) laws deliberately set a very high bar when drafting the 'all reasonable steps' defence. The effect is that most offences under CoR are 'strict', meaning that you're guilty unless proven innocent. While this is likely to change if and when CoR moves to 'primary duties', the taking of all reasonable steps will remain relevant for some time to come.
So, what does it mean and what must you do if you want any chance of a successful defence?
Fortunately, the Heavy Vehicle National Law (HVNL) provides considerable guidance on how the defence is intended to operate. According to s 618, if the HVNL specifies that you have a reasonable steps defence, you must prove that:
- the person charged did not know, and could not reasonably be expected to have known, of the contravention concerned; and
- either the person took all reasonable steps to prevent the contravention or there were no steps the person could reasonably be expected to have taken to prevent the contravention.
Defending a Mass, Dimension or Loading Offence
Section 620 of the HVNL lists the sorts of matters that a court may consider in relation to a reasonable steps defence for mass, dimension or loading offences.
- Accurately and safely weigh or measure the heavy vehicle or its load, or safely restrain the load in the heavy vehicle (ss 620(1)(b)(i)).
This is relatively straightforward, though, curiously, it requires that the weighing and measuring be both safe and accurate. It is likely that the element of safety applies to measurement of load dimension and load restraint. While it may be physically possible for a driver to apply load restraint, depending on the nature of the load, it may not be safe for that driver to do so without assistance.
Ensure that drivers and others responsible for measuring the dimensions of a load are issued with tape measures and/or trained in how to use them.
It is important to remember that while the sub-section does not expressly say so, keeping records of the relevant weight or measurement will be important, as will knowledge about what weights and dimensions are legal.
- Provide and obtain sufficient and reliable evidence from which the weight or measurement of the heavy vehicle or its load might be calculated (ss 620(1)(b)(ii)).
This relates to the obligations of consignors and prime contractors to ensure that information provided about the weights of loads is accurate.
Consignors should be under a contractual obligation to provide accurate data and/or should be required to warrant that all information provided about the weight of cargo is accurate and verifiable. It may not be sufficient for a prime contractor to rely on the data provided by a consignor.
The prime contractor must be able to satisfy themselves that the information is both sufficient and accurate. This is particularly important where the vehicle may not have access to a weighbridge as a means of assessing gross vehicle mass.
Once again, while the subsection does not expressly say so, it is important to keep records of the information so that, if necessary, you can demonstrate why you believed the information to be both sufficient and accurate. For example, you may be asked why you didn't ask for additional evidence, and what it was about the information that made you think it was accurate.
- Manage, reduce or eliminate a potential contravention arising from the location of the heavy vehicle, the location of the load on the heavy vehicle or the location of goods in the load (ss 620(1)(b)(iii)).
This subsection imposes a positive obligation to institute a system designed to reduce risk associated with loading. The Load Restraint Guide (currently being updated by the National Heavy Vehicle Regulator) might be a useful starting point. Depending on the nature of your business and the cargo you move, you should look into cargo loading and securing systems that are both safe and efficient, and make use of the best available technologies.
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.
