23 April 2019
Published by Rebecca Niumeitolu
Proper responses to Chain of Responsibility (CoR) incidents are critical to effectively minimise further safety risks to drivers and the public, minimise your exposure to liability and avoid the prospects of repeat incidents in the future.
Long gone are the days when transport businesses could ‘fudge’ the gist of their response protocols relating to CoR incidents. Under the primary duty and the executive duty it is mandatory that such policies and procedures are implemented and are tailored to a business’ transport activities.
Many CoR non-compliance events arise from, result in or are detected as a result of incidents or accidents. In such cases, you may need to also integrate emergency response procedures into your CoR incident response procedures.
A failure to implement effective CoR incident response protocols risks, among other things, a maximum penalty of $3 million for corporations and $300,000 or five years imprisonment for individuals for category 1 breaches of the primary duty. Moreover, given that CoR incident response protocols form such a fundamental role in CoR parties’ performance of their Heavy Vehicle National Law (HVNL) obligations, you can bet that a business that fails to have such protocols is bound to raise the alarms to investigators that they have other non-compliance issues.
Key ingredients for a CoR incident response protocol
The emergency response component of your CoR incident response protocol should identify contact details of relevant emergency services.
Different CoR breaches will give rise to different requirements to contact emergency services and report incidents to authorities.
For example, if a driver is involved in a traffic collision and a person is seriously injured, then it is prudent to contact emergency services to render the care required to the injured person. In fact, some laws require that drivers stay at the scene. Section 287 of the Transport Operations (Road User Management- Road Rules) Regulation 2009 (Qld) stipulates that the driver must stop at the scene of the crash and give the drivers’ details to the Queensland Police Service if someone is killed or injured in the crash.
On the other hand, a CoR breach which does not result in harm or injury or any collision, such as a breach of a drivers’ rest hour requirements or a failure to keep certain work diary records as required by the HVNL, does not give rise to the same requirements to contact emergency services or report breaches to authorities. That said, even where there is no obligation to report a breach, there is still an obligation to remedy it.
In all circumstances, to assist with addressing compliance in a systematic way you should ensure that you:
Administer first aid
The emergency response component of your CoR incident response protocol should identify persons who are qualified in your business to administer first aid if it is required.
Secure the site of the incident
Your CoR incident response protocol should take account of the different steps persons involved in the accident should take if there is CoR breach which impacts on the physical safety of the driver, other CoR parties or the public.
When considering guidelines for persons at the scene to take, questions which can guide the development of your protocol are:
Draw up an incident report
Incident reports are crucial to devising the appropriate remedial action to be taken by businesses to avoid future CoR incidents, to keep records in the event of future claims against your business or its employees, to keep records in the event that your business has claims against third parties or from insurers and to establish compliance with HVNL obligations to authorities.
Incidents reports should cover:
Implement remedial measures
Incidents should be reported to executives and any other persons identified to manage emergencies in the business for review.
If the causes of the CoR incident were the result of the business’ conduct or that of its personnel then consideration should be given to whether further remedial measures need to be implemented to avoid further CoR incidents in the future.
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.
Nathan Cecil, Partner
T: +61 2 8083 0429
Geoff Farnsworth, Partner
T: +61 2 8083 0416
Harry Kingsley, Partner
T: +61 3 9321 9888
Suzy Cairney, Partner
T: +61 7 3135 0684
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