We’ve all been waiting to see what the NHVR will do with the changes to the National Heavy Vehicle National law, and we’ve now received a taste. The NHVR has successfully prosecuted a national business, within the South Australian courts in Adelaide and has been regarded as a CoR ‘Win’.
Magistrate Mark Semmens is scathing in his findings against Bitumax, a Boral company which trades as Boral Asphalt; for a mass offence. Importantly though under the pre-October 1 2018 Heavy Vehicle National Law. The magistrate fined Bitumax $9,900. The maximum penalty for this type of offence is a fine of $55,000.
The magistrate stated that “In no way could this offending by the company be considered trifling or a technical breach. This is a case of wilful blindness and ‘hopefulness’ that was improper and fell far short of good corporate governance. It is a much more severe example of a typical offence because there was absolutely no effort of compliance on the day of the offence by any person in the chain of responsibility.”
The magistrate went on further to state that “I do not think this is a ‘basic’ case. It is an extraordinary case and what is extraordinary is the complete lack of any structure by a corporate body to ensure that a chain of reporting exists to ensure compliance with the legal and safety obligations cast upon it; therefore, the loading and transport of the materials involved pure guesswork and speculation.”
The magistrate noted that an employee, the loader from Bitumax, asked three times to have scales of some type installed, which fell on deaf ears.
“This was a case of complete indifference by the company and its operators as to their legal obligations. The fact that there was nothing in place to check the mass of the load is entirely unacceptable.”
Magistrate Mark Semmens rejected any explanation that the trucks usually used, which had on-board scales, were not available and that there was reliance upon the manufacturers’ load limits for the truck.
This excerpt from the case notes noted that the closing remarks of Magistrate Mark Semmens, which stated “It is the company’s obligation to ensure that there was compliance with the heavy vehicle laws, no matter what vehicle is used or who owns it,” he states. Adding, “I say that as a matter of law, the manufacturers’ load limits do not apply and no prudent operator or driver of a heavy vehicle would ever rely upon them.”
This case goes to the heart of Chain of Responsibility and is a classic example of proper assurances required by the companies that engage freight companies for service. You may have heard that it is not your responsibility to ensure safety in the organisations that you may hire for work.
Indeed, the prescription of what should and should be a safety measure is not your responsibility, but the assurance that safety is taking place in your organisation and that parties within your work tasks have the right mechanisms to prevent safety breaches, are your responsibility and due diligence is imperative.
The business found liable here pleaded guilty and attracted a 40% reduction in the overall fine, which in this instance was a maximum of $55,000. If this offence occurred in the current legislative framework, the fine would have been in this instance a minimum of $500k, and the loading manager who was also found guilty here would have been defending a personal fine of $50k. There was no specifics around whether or not this breach was found to be reckless or endangering lives, so it is fair to presume that a $3m dollar fine or jail would not have occurred.