Liability of operators/employers/corporations under primary duties.
Evidentiary issues likely to arise for parties in prosecution.
Doing some crystal ball gazing, in the absence of Section 183 of the Heavy Vehicle National Law (HVNL), how would operators/employers/corporations be liable for mass offences under any proposed primary duty duties akin to the Workplace Health and Safety (WHS) legislation?
The removal of section 183 obviously would make it more difficult to attribute fault, in a prosecution, to other parties in the chain of responsibility. Section 183 is a straight-forward deemed liability provision, with no fault element, and it streamlined the manner in which liability could be attributed to employers, operators and other corporations.
Prior to the HVNL, separate substantive provisions existed which created liability for these parties. For example, sections 53 and 56 of the Road Transport (General) Act 2005 created liability for consignors and operators respectively for mass, dimension and loading offences. Any amendments to not revert to these substantive provisions but have the liability of corporations and other parties in the chain of responsibility to be subsumed by the primary duty provisions nay be problematic.
We consider that while operators, employers and other corporations can be held liable for mass offences using the primary duty provisions similar to the WHS legislation, proving any such offences will be more difficult, costly, long-winded and resource-intensive than under the current HVNL. This is because the prosecutor ie likely to be required to prove and contend that:
- A person or company (the defendant) is a party in the chain of responsibility. In the case of an operator, the prosecutor is likely to now be required to prove that the driver was “making a journey for” the operator of the vehicle.
- By virtue of being a party in the chain of responsibility, the person or company has a duty to ensure that its transport activities, including activities associated with directing or employing a person to drive a vehicle, loading, scheduling, packing, and the making of decisions associated with consigning goods, are conducted safely, or are safe. Using the example of an operator for a mass offence, the prosecutor is likely to have to contend that the person or company has a duty to, among other things:
- Remove or minimise public risks by ensuring its heavy vehicles comply with mass requirements;
- Ensure that the directions given to drivers and the systems in place do not directly or indirectly cause or encourage drivers or other parties in the chain of responsibility to breach mass requirements.
- That the person or company contravened that duty.
Proving that an operator’s conduct directly or indirectly contributed to breaches of mass requirements is less problematic than it is going to likely to be to make the connection between public risk and mass offences. The former requires an assessment of the surrounding circumstances of the transportation, the conduct of the operator and an evaluation of the systems and contracts in place at the company. The latter requires either evidence of an actual public risk or an inference to be drawn by the Court that breaches of mass requirements necessarily create a public risk.
It is not always the case that an excessively heavy vehicle breaches a mass requirement. A heavy vehicle may be permitted to legally weigh 100 tonnes and operate on a road; yet a heavy vehicle that weighs 50 tonnes can represent a severe-risk breach of mass requirement if no permit applies to the vehicle. As such, the concept of “public risk” takes on a different meaning for mass offences where Parliament can legislate for what are effectively controlled breaches of mass requirements. This is likely to make it difficult for the Court to draw inferences about what is public risk.
Public safety is a central theme of mass, dimension and loading requirements for heavy vehicles. Part 4.1 of the HVNL provides that one of the two main purposes of Chapter 4 is to “improve public safety by decreasing risks to public safety caused by excessively loaded or excessively large heavy vehicles”. This purpose is said to be “achieved by imposing mass requirements for heavy vehicles” (as well as dimension, loading and access requirements). The apparent corollary of these provisions is that where mass requirements are breached, and vehicles are excessively loaded or excessively large, there is a risk to public safety. By reference to these purposive provisions, it can be contended by a prosecutor that where mass offences occur, there are risks to public safety and the operator of the vehicle, having failed to remove those risks, breached its primary duty.
The issue with the above approach is that it requires a consideration of the purposes of the legislation and the intention of Parliament. It also may also require a number of assumptions to be made by a prosecutor. It is not clear on the wording of the HVNL that breaches of mass, dimension or loading requirements are considered to be a risk to public safety, though this is inherent by Part 4.1 of the HVNL. As such, each time a potential primary duties charge is brought against an operator, employer or corporation for a detected mass breach, and that charge is brought on the basis that the defendant did not remove or minimise public risk, it is open to a defendant party to argue, amongst other things, if relevant:
- There was no public risk associated with the transportation;
- The breach of a mass requirement does not in itself result in harm to the environment or damage to road infrastructure;
- There was no risk to public safety because – for example – the driver was not speeding or driving erratically, the heavy vehicle has on other occasions legally carried larger loads, the combination is designed to safely carry heavier loads, or there were no persons or property in the vicinity or likely to be in the vicinity.
When these arguments are raised, all a prosecutor can do in the circumstances is rely upon the definitions contained in the HVNL for “public risk” and “public safety”, the purpose for imposing mass requirements in Chapter 4, and invite the Court to infer that where there are breaches of mass requirements, there are necessarily resultant public risks, whether it be to safety, infrastructure or the environment. Reliance might also be placed upon the wording and intent of section 594 of the HVNL which highlights the implications and consequences of contraventions of mass, dimension and loading requirements, albeit for the purpose of imposing sentence, all of which entail public risk.
It seems to us that in circumstances where liability is sought to be attributed to operators, employers and other corporations for mass breaches using a duty akin to a primary duty provision of the WHS legislation, the safer option would be to allege that the party did not ensure that its conduct did not directly or indirectly cause or encourage the driver or another person in the chain of responsibility to contravene a mass requirement. This allows the prosecutor to lead evidence of instructions given to the driver, the systems in procedures in place to weigh heavy vehicles and prevent breaches, the systems in place to ensure compliance and/or obtain permits, and the contractual obligations the operator has with other parties in the chain of responsibility.
Another option is for the legislators to be clearer on the connection between illegal or non-compliant heavy vehicles and public risk. We recommend consideration be given to creating a further provision, in a similar vein to sections 108, 594, and other deeming evidentiary provisions, to clarify that where a breach of a mass requirement (or dimension and loading requirement as the case requires) occurs, it is to be presumed, unless the contrary is proven, that the illegal or non-compliant heavy vehicle gave rise to one or more public risks.
In summary, while we consider that the Regulator and prosecution are able to utilise the framework relating to primary duties to make an operator or corporation liable for mass breaches, any method to do so akin to primary duties provisions under WHS legislation is likely to be difficult, convoluted and result in an increased number of contested charges and increased costs of litigation for all parties.
Post by Philip Cowdery