The Heavy Vehicle National Law (NSW) requirements of Heavy Vehicles in respect of Mass, Dimension and Load Restraint are dealt with under Chapter 4 of the Act from ss. 94 – 115. This article is about truck loading requirements.
The main purpose of this Chapter is broadly stated as being to improve public safety by decreasing risks to public safety caused by excessively loaded or excessively large heavy vehicles and to minimise any adverse impact of excessively loaded or excessively large heavy vehicles on road infrastructure or public amenity.
Consequently, breaches of these laws, carry hefty monetary penalties and can often be imposed on not only the driver, but also the registered operator. (see Liability of various parties)
Breaches for incorrect truck loading
The categories of breaches for Loading Requirements are Minor, Substantial and Severe breaches.
Loading breaches may occur when a load is insufficiently restrained or positioned on the vehicle.
Schedule 7 of the Heavy Vehicle (Mass, Dimension & Loading) National Regulation NSW stipulates the following requirement on Loading –
(1) A load on a heavy vehicle must not be placed in a way that makes the vehicle unstable or unsafe.
(2) A load on a heavy vehicle must be secured so it is unlikely to fall or be dislodged from the vehicle.
(3) An appropriate method must be used to restrain the load on a heavy vehicle.
The category of breaches associated with contraventions of Load Requirements are more complicated than those defined for Mass and Dimension requirements and involve a subjective consideration.
Minor risk breach (s.112)
A contravention of a loading requirement applying to a heavy vehicle is a minor risk breach if –
(a) the subject matter of the contravention does not involve a loss or shifting of the load; and
(b) had the subject matter of the contravention involved a loss or shifting of the load, the loss or shifting of the load would not have been likely to have involved-
(i) an appreciable safety risk; or
(ii) an appreciable risk of-
(A) damage to road infrastructure; or
(B) causing an adverse effect on public amenity.
Substantial risk breach (s.113)
(1) A contravention of a loading requirement applying to a heavy vehicle is a substantial risk breach if the subject matter of the contravention involves a loss or shifting of the load that does not involve-
(a) an appreciable safety risk; or
(b) an appreciable risk of-
(i) damage to road infrastructure; or
(ii) causing an adverse effect on public amenity.
(2) A contravention of a loading requirement applying to a heavy vehicle is also a substantial risk breach if-
(a) the subject matter of the contravention does not involve a loss or shifting of the load; and
(b) had the subject matter of the contravention involved a loss or shifting of the load, the loss or shifting of the load would have been likely to have involved-
(i) an appreciable safety risk; or
(ii) an appreciable risk of-
(A) damage to road infrastructure; or
(B) causing an adverse effect on public amenity.
Severe risk breach (s.114)
A contravention of a loading requirement applying to a heavy vehicle is a severe risk breach if the subject matter of the contravention involves a loss or shifting of the vehicle’s load that involves-
(a) an appreciable safety risk; or
(b) an appreciable risk of-
(i) damage to road infrastructure; or
(ii) causing an adverse effect on public amenity.
It can be seen from each of these sections, that risk to Safety, Infrastructure and Public Amenity are the three considerations.
In order to prove a contravention of a loading requirement, s.115 stipulates that if a load does not meet the performance standard stated in the Load Restraint Guide or the load or part of the load has fallen off a heavy vehicle then that is evidence that a contravention has occurred.
A Load Restraint Guide is a document prepared by the National Transport Commission and published in the Commonwealth Gazette, from time to time and can be downloaded from the National Transport Commission website in PDF format.
Penalties – Breaches of Loading Requirements
An offence being a Minor Risk Breach carries a maximum penalty of $3,410.00
An offence being a substantial risk breach carries a maximum penalty of $5,710.00 and
An offence being a Severe Risk Breach carries a penalty of $11,390.00
Defences available
At common law, a person charged with offences such as these of strict liability, would have a defence known briefly as an honest and reasonable mistake of fact.
Companies who are prosecuted are now subject to “5 times” the above fines.
S.596(3) allows a court when dealing with a guilty offence for a body corporate, “….may impose a maximum fine of an amount equal to 5 times the maximum fine for an individual.
An individual who decides to incorporate a company for various reasons, (maybe a small husband and wife family business) and is prosecuted for any of these offences, is subject to enormous maximum penalties, simply because they are incorporated.
Defences available
At common law, a person charged with offences such as these of strict liability, would have a defence known briefly as an honest and reasonable mistake of fact, however, the import of this legislation in respect of compliance with Mass, Dimenson and loading appears to provide for a “reasonable excuse”.
Liability of various parties
In prosecutions for offences of Mass, Dimension or Loading requirements, (cf. ss. 96, 12 & 111) the driver is not the only person whom might be penalised.
The introduction of “Chain of Responsibility” deals with the responsibility and liability of various other parties apart from the driver who are considered guilty of the offence. These may be the employer, prime contractor, operator, consignor, packer, loading manager or loader.
It is not uncommon for the prosecuting authority to breach both the driver and the operating company who employs the driver. In those circumstances, the penalties can prove costly.
Part 10.4 ss.626 – 639 provide for various Defences and Liability in respect of heavy vehicle drivers, operators and registered operators.
Have you received a Court Attendance Notice?
Do you need a Lawyer? These offences are looked upon seriously by the Authority and the penalties can be severe.
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