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.
The main purpose of this Chapter is broadly stated as being to improve public safety by decreasing risks to public safety caused by overloaded 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
The categories of breaches for Mass requirements are Minor, Substantial and Severe breaches. Mass breaches are often referred to as overloading. Overloading occurs when the Gross Vehicle Mass of the vehicle is exceeded.
Under the Road Transport Act 2013 the definition of GVM is defined as the maximum loaded mass of the vehicle as specified by the vehicle’s manufacturer or as specified by the Authority (RMS). The Authority will specify a GVM if the manufacturer has not specified a maximum loaded mass, or the manufacturer cannot be identified or there have been modifications to the vehicle to the extent that the manufacturer’s specification is no longer appropriate.
Care should be exercised when relying upon the manufacturer’s specification, as local laws might be in place which allow a lower mass than that specified. Operator’s should be wary of the additional weight afforded by a full fuel tank compared with an almost empty tank.
The way a Mass Breach is calculated is set out in s.97 of the Act and is as follows –
“severe risk breach lower limit” , for a particular mass requirement applying to a heavy vehicle, means a mass equalling 120% of the maximum mass (rounded up to the nearest 0.1t) permitted for the vehicle under that mass requirement.
“substantial risk breach lower limit” , for a particular mass requirement applying to a heavy vehicle, means the higher of the following-
(a) a mass equalling 105% of the maximum mass (rounded up to the nearest 0.1t) permitted for the vehicle under that mass requirement;
(b) 0.5t.
Categories of Breaches
Minor Breach (s.98) –This occurs if the subject matter of the contravention is less than the substantial risk breach lower limit requirement.
Substantial Breach (s.99) – A contravention of a mass requirement applying to a heavy vehicle is a substantial risk breach if the subject matter of the contravention is-
(a) equal to or greater than the substantial risk breach lower limit for the requirement; and
(b) less than the severe risk breach lower limit for the requirement.
Severe Breach (s.100) – A contravention of a mass requirement applying to a heavy vehicle is a severe risk breach if the subject matter of the contravention is equal to or greater than the severe risk breach lower limit for the requirement.
Penalties (as at 01/01/2021) – Breaches of Mass Requirements
An offence being a Minor Risk Breach carries a maximum penalty of $4,470.00
An offence being a substantial risk breach carries a maximum penalty of $6,740.00 and
An offence being a Severe Risk Breach carries a penalty of $11,390.00 plus an additional maximum of $560 for every additional 1% over a 120% overload but cannot exceed $22,790.
Body Corporates (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 husband and wife small 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, 102 & 111) the driver is not the only person whom might be penalised.
Each of the above sections refer to “the person who drivers, or permits another person to drive, a heavy vehicle on a road must ensure…” compliance. So liability of various other parties apart from the driver may be considered guilty of the offence. These may be the employer, prime contractor, operator, consignor, packer, loading manager or loader.
For this purpose, the Act envisages a “Chain of Responsibility” in respect of drivers, owners, operators etc.
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.
Please complete the contact form opposite or call us on (02) 9687 3777 and we will gladly assist you.