12 August 2019
Published by Rebecca Niumeitolu
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:
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?
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:
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:
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:
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?
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).
Author: Rebecca Niumeitolu
* A version of this article was originally published in CoR Adviser. This article is © 2019 Portner Press Pty Ltd and has been reproduced with permission of Portner Press.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Rebecca Niumeitolu