The concept of the 'chain' of responsibility in heavy vehicle transport is appealingly simple: one link, attached to another, attached to another.

It recognises that there are many parties in any heavy vehicle supply chain and each of those parties has a role to play in the safe conduct of heavy vehicle operations. The ultimate beneficiaries of an enhanced safety culture will primarily be those on the 'front-line', being truck drivers but also the road-using general public, who are, basically all of us.

Supply 'chains' are complex and communications up and down the chain are not always as good as they could be. In any business the profit motive will be a major factor, which can result in costs being squeezed often at the expense of safety compliance.

This is ultimately unsustainable in terms of money and physical well-being. Money saved by cutting safety costs is the ultimate in false economy.

By enforcing the 'social licence' that applies to all companies and road users, the Heavy Vehicle National Law (HVNL) and Chain of Responsibility (CoR) laws encourage everyone in the chain to 'operate within acceptable safety parameters, or don't operate at all'.

CoR was meant to take focus off truck drivers and operators and to share it along the chain. Despite that intention, road operators continue to feel that they bear a disproportionate share of the burden. While that might be a factor of enforcement priorities, it is not manifest in the law itself.

The fact is that compliance requirements under the new CoR are significant and shared.

Having said that, have they gone too far the other way? Has the chain analogy become instead a web of liability imposing obligations on parties that are almost impossible to manage?

Properly understood, I don't believe so. Key to this is the concept of what is reasonably practicable.

Under the current CoR a party's liability is potentially strict, subject to proving that it took "all reasonable steps" to prevent the occurrence. As we have previously observed, no one has ever succeeded in proving that they took "all" reasonable steps.

While chain parties still have significant obligations, those obligations are limited to what is reasonably practicable. While some people might still find that to be maddeningly imprecise, it is significant and prevents obligations and liabilities from being open-ended.

The HVNL provides:

reasonably practicable, in relation to a duty, means that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including—

  1. the likelihood of a safety risk, or damage to road infrastructure, happening
  2. the harm that could result from the risk or damage
  3. what the person knows, or ought reasonably to know, about the risk or damage
  4. what the person knows, or ought reasonably to know, about the ways of -
    1. removing or minimising the risk; or
    2. preventing or minimising the damage
  1. the availability and suitability of those ways
  2. the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

The key to compliance is to:

  1. give careful thought to the risks associated with the transport activities your business carries out; and
  2. take (and continue to take) those steps which are reasonably practicable to address those risks.

That is not to say that the process is easy and won't force you to make some hard decisions, particularly in relation to employees and contractors who won't get the message.

For example, businesses often use several different contractors. They may use one major contractor in the cities, but may be required to use other smaller contractors for rural and regional freight. Managing compliance with major contractors and customers will often be less challenging than managing regional carriers who often represent a relatively small portion of the business.

Nevertheless, the compliance obligations are the same and businesses must insist on compliance. Even when the choice of contractors is limited, you may need to black-list contractors who are incapable of demonstrating a commitment to CoR compliance.

Conclusion

While the compliance tasks associated with new CoR may seem daunting, bear in mind that you can only do what you can do. No one expects you to enforce CoR singlehandedly, just to do what you reasonably can.

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.