Overloaded & Unrestrained: Duty of Care Beyond the HVNL

The image tells a clear story. Based on what's visible:

• The vehicle has no load restraint.
• The vehicle is loaded beyond its mass restrictions — the tops of the pallets flare outwards, bending the tray of the truck.
• On the positive side, the load is unitised to the pallets, which helps given it appears to be loose items of potentially substantial weight.

Based on 20 years of experience, the vehicle looks like a Dyna 350 or 400 with a total capacity of approximately 3 to 4.5 tonnes GVM. That puts its payload capacity at roughly 1.5 to 2 tonnes.

The eight pallets, at an estimated 650 kg each, give a total load of 4.5 to 6 tonnes — well over the vehicle's rated capacity. Because the vehicle falls below the GVM threshold for the Heavy Vehicle National Law, it does not technically fall within the HVNL's scope. But that does not mean everyone involved is off the hook.

The owner and driver still have a duty of care. They must ensure that their actions do not impact the lives of their employees or the public — even though they are not liable under the Heavy Vehicle National Law.

This is the point that catches people out. A vehicle being outside the HVNL does not remove the general duty of care that applies under work health and safety law and common law negligence.

If this driver had severely injured or killed someone, the consequences would have extended well beyond a traffic infringement. The consignor, in particular, may still have been held liable — even though they were not necessarily under the jurisdiction of the HVNL or directly responsible for on-road safety while the goods were in the driver's care.

A Western Australian court found that a Harvey Norman franchisee was to pay 25% of the total sum paid by Harvey Norman Corporate to an injured customer. The reason: the franchisee made no attempt to conduct a risk assessment or check the risks involved before "sending its customers into an area where there was a foreseeable risk of injury which was not insignificant."

The court noted that "a reasonable store owner" would have conducted a risk assessment. A total of $865,000 was awarded in damages and costs, to be paid by the franchisee, Osborne Park Commercial Pty Ltd, who denied any wrongdoing.

The parallel is direct

If the driver in this case had severely injured or killed someone, the consignor could still have been held liable — not because of the HVNL, but because of a failure to take reasonable steps to ensure the transport task was safe.

Even when a vehicle falls outside the HVNL, a consignor should still have ensured the following:

• A reasonable check on the vehicle's total capacity — could it legally and safely carry the load?
• A reasonable check that the driver was properly trained to ensure a risk-free transit of the goods.
• That the driver had the restraint required to secure the load safely, and that load restraint met Australian standards.
• That the driver understood the total mass and that it did not exceed the vehicle's maximum overall or axle mass capacity.
• That the driver could notify someone of potential hazards and could report or refuse the load.

These are not onerous regulatory requirements. They are the basic, reasonable checks that a court would expect any business in the supply chain to have made.

For help reviewing your own controls and evidence, consider CoR consulting with MAEZ.

Thankfully, no one was hurt in this case. But it could have been a different story — one you would have seen on the evening news rather than on a compliance blog.

If someone had been killed or seriously injured, the businesses responsible could have faced a substantial damages sum that puts most operators out of business. As Mark Bouris, known from Mentored, was quoted: "Companies go out of business for four main reasons…" — the fourth was not mitigating risk.

The core lesson

You do not need to be inside the HVNL to be exposed. You need to identify what is reasonable, put the controls in place, and be able to show you did it.

MAEZ helps Australian transport businesses turn Chain of Responsibility, HVNL, WHS, transport safety, and chartered risk obligations into practical training, advisory, audit, and implementation pathways. If you want a practical review of the gaps that matter most, contact MAEZ or explore our Chain of Responsibility training.