Australia: Do you understand your heavy vehicle maintenance obligations?

Last Updated: 16 August 2019
Article by Rebecca Niumeitolu
Most Read Contributor in Australia, September 2019

Given the broad terms in which vehicle maintenance obligations are couched under the Heavy Vehicle National Law (HVNL), you may feel confused and overwhelmed about what your obligations actually are. This article provides a starting place for parties in the Chain of Responsibility (CoR) to consider their vehicle maintenance obligations and their strategies for compliance.

What are the key maintenance obligations?

The principal obligations for heavy vehicle maintenance under the HVNL are as follows:

  • CoR parties must not use, or permit another person to use, a heavy vehicle on the road that is unsafe. A vehicle is unsafe where its condition or the condition of its components or equipment is such that using the vehicle would be unsafe or would endanger public safety

  • CoR parties must not use, or permit another person to use, a heavy vehicle that contravenes an applicable heavy vehicle standard. Heavy vehicle standards arise under the Australian Design Rules and the Heavy Vehicle (Vehicle Standards) National Regulation, which set out various vehicle standards, including general safety requirements such as those relating to steering, tyres and vehicle configuration.

The primary duty for CoR parties – that is, to ensure so far as reasonably practicable the safety of their transport activities – intersects with these principal obligations. For example, an operator that does not inspect a heavy vehicle regularly and allows it to be used on the road whilst defective could be liable under s 89 and also for contravening its primary duty.

What are your responsibilities?

Operators

By and large, responsibilities for maintaining and inspecting heavy vehicles reside with the operator of a heavy vehicle, as the CoR party with the greatest capacity to control, eliminate and minimise risks associated with the vehicle.

An operator's responsibilities include:

  • ensuring that its business has effective Maintenance Management Systems. According to the Daily Safety Check Guide and the NVHIM Fact Sheet – Brake Testing on the National Heavy Vehicle Regulator's (NHVR) website, daily checks should, at a minimum, cover brakes, lights and reflectors, windows, mirrors and wipers, structure and bodywork, brakes, and the engine, driveline and exhaust

  • ensuring heavy vehicles are regularly maintained and inspected according to the applicable heavy vehicle standards. The National Heavy Vehicle Inspection Manual provides a standardised manual to inspect heavy vehicles

  • if a defect is detected, not allowing the defective vehicle to be used until the defect can be rectified and the vehicle is safe and compliant with applicable standards.

Drivers

A driver will also have duties in relation to heavy vehicle maintenance, although usually their obligations will not be as onerous as those of an operator. For example, if a driver observes a defect in a heavy vehicle such as an oil leak, a broken seatbelt, a broken mirror or flat tyre, then the driver's maintenance responsibilities are likely to be triggered such that they should:

  • not drive the heavy vehicle, as it may be unsafe and non-compliant with heavy vehicle standards
  • notify the operator of the nature of the heavy vehicle defect.

Executives

An executive must exercise due diligence to ensure that their business complies with safety duties, including the duty not to permit a vehicle to be used if it is unsafe. It is important for an executive of a business that owns and operates heavy vehicles to ensure that the business has, among other things:

  • effective and sufficiently resourced Maintenance Management Systems
  • systems for their management team, drivers and inspectors to report any suspected or actual heavy vehicle defects and record steps taken to rectify faults
  • training for management, drivers and inspectors to ensure that they can identify heavy vehicle faults according to their respective roles and expertise.

Other CoR parties

Other CoR parties' maintenance responsibilities are only likely to be triggered where they observe a vehicle defect. In this case, their responsibilities are likely to involve not permitting the use of the unsafe or defective heavy vehicle and notifying the driver and operator of the suspected or actual vehicle non-compliance.

What happens if an operator contravenes their maintenance obligations?

Defect notices

A failure to comply with maintenance obligations could result in a heavy vehicle inspector issuing a defect notice. Generally, a major defect notice prohibits the use of a heavy vehicle until the regulator decides that the vehicle is no longer defective. A minor defect notice provides that a vehicle cannot be used until a specific action is taken to rectify the vehicle defect.

Prosecution under the HVNL

The maximum penalty for a business that permits a person to use a heavy vehicle that does not comply with applicable heavy vehicle standards is $15,000. The maximum penalty for a business that allows an unsafe heavy vehicle to be used is $30,000.

Remember, although the costs of maintenance can be high, they are arguably far outweighed by the serious costs and risks to your business, road users and infrastructure as a result of non-compliance with maintenance obligations.

In 2017, the South Australian Court of Criminal Appeal upheld a sentence of 12 years' imprisonment for the owner of a company for the offences of endangering life and manslaughter by sending out its driver in a truck with faulty brakes. As the Court stated: "The consequences of driving an unsafe heavy vehicle can be horrendous" R v Colbert (2017).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions