Who is this advice for?

This regulatory advice is intended for:

• parties in the CoR.

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The primary duty

Under the HVNL section 26C, each party in the CoR has a primary duty to ensure, so far as is reasonably practicable, the safety of their transport activities. This is an obligation to eliminate or minimise public risks, and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL.

Reasonably practicable is the legal standard for complying with the primary duty.

Note: ‘Transport activities’ include all the activities associated with the use of a heavy vehicle on a road. It includes safety systems, business processes, such as contract negotiation and communication and decision-making, as well as the activities normally associated with the transport and logistics sector, such as training, scheduling, route planning, managing premises, selecting and maintaining vehicles, packing, loading and unloading.

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How is reasonably practicable defined in the HVNL?

Reasonably practicable is defined in the HVNL section 5 as:

in relation to a duty, means that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters, including—

1. the likelihood of a safety risk, or damage to road infrastructure, happening; and
2. the harm that could result from the risk or damage; and
3. what the person knows, or ought reasonably to know, about the risk or damage; and
4. what the person knows, or ought reasonably to know, about the ways of—
5. removing or minimising the risk; or
6. preventing or minimising the damage; and
7. the availability and suitability of those ways; and
8. the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

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What does reasonably practicable mean?

Reasonably practicable means what should be done to ensure safety, weighing up all the relevant factors. It is a question of proportionality – ensuring the measures used to eliminate or minimise the risks are proportionate to the likelihood and degree of harm.

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How can I determine whether I have done everything that is reasonably practicable to eliminate or minimise public risks?

Determining whether the measures you have taken are reasonably practicable is an objective test. You should consider the position of an ordinary reasonable person to determine whether your actions were sufficient and proportionate to the risk and the unique circumstances of your situation as a whole, having regard to:

• the likelihood of a risk
• the degree of harm that may result
• what you know or ought reasonably to know
• whether measures are available and suitable
• the cost of measures and whether they are proportionate to the risk.

No single factor would determine the outcome. The factors would be assessed and considered in their totality.

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The likelihood of risk or damage and degree of harm that may result

You must weigh the likelihood of a risk occurring against the degree of harm, and then implement proportionate measures. The more likely a risk is to occur, the more reasonable the expectation that something will be done to eliminate or minimise the risk. Where the degree of harm is serious – such as, death or serious injury – there will be more expected from you as a duty holder to eliminate or minimise the risk. However, if the harm that may result is very minor, then it is not reasonable to expect you to implement excessive or expensive measures.

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What you know or ought reasonably to know about risks and ways to eliminate or minimise them

When determining whether you’ve done everything that is reasonably practicable, the following are considered:

• your knowledge of hazards and risks, and the steps you take to eliminate, minimise or control the risks within your business
• what a reasonable person in your position – for example, a person in your position and holding the same duty – would be expected to know.

What you know about a risk and the controls to manage the risk contributes to what is reasonable for you to do as a duty holder.

If you have failed to inform yourself or remain up to date with best practice and there is a known measure to eliminate or minimise a risk, you may not be doing everything that is reasonably practicable to ensure the safety of your transport activities.

HVNL section 632A states that a Registered Industry Code of Practice (RICP) – such as, the Master Code – is admissible as evidence.
The court may:

• have regard to an RICP as evidence of what is known about a hazard or risk, risk assessment, or measure to eliminate or minimise the risk to which the code relates; and
• rely on an RICP in determining what is reasonably practicable to eliminate or minimise risks in the circumstances to which the code relates.

Registered industry codes are published on the NHVR website at Registered Industry Codes of Practice.

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Availability and suitability

A measure to eliminate or minimise a risk is suitable if it is effective, practical to implement, and does not introduce new or higher risks. A measure is ‘available’ if it is:

• provided on the open market; or
• possible to manufacture it.

If a measure is not available to you or not suitable for your circumstances, then it would not be reasonable to implement it, and you may have to find other measures to eliminate a risk – or to minimise it to an acceptable level.

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Cost

The cost of implementing a measure to eliminate or minimise a risk is a consideration when determining what is reasonably practicable. It’s important to note that there is always a presumption of safety over cost, and cost should be your final consideration. Costs to implement measures will be considered reasonable unless the cost is grossly disproportionate to the likelihood of the risk and the degree of harm.

When assessing whether costs are proportionate, the following can be considered:

• initial outlays – such as, manufacturing costs and shipping
• installation costs to ensure the measure is properly implemented into your business
• maintenance costs to ensure the measure remains effective
• training to provide employees with the knowledge and skills to operate and implement the measure – for example, induction and scheduled refresher training
• work hours lost to training
• costs to update policies and procedures
• operational costs to ensure the measure can function properly.

If there are multiple measures that achieve the same result in eliminating or minimising a risk to an acceptable level, then you can choose the option that is most cost-effective.

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Costs to be considered objectively

Assessing whether the cost of implementing a measure is proportionate is an objective test. Choosing a low-cost option that is less effective on the sole basis that it is cheaper is unlikely to be a reasonable way of eliminating or minimising risk, especially if the degree of harm is significant.

You cannot expose people to a higher level of risk or provide a lower level of protection simply because you are unwilling to spend the money or have less financial capacity than other parties who hold the same primary duty. Due to the nature of the heavy vehicle industry, and the risk of death or serious injury, there is a high threshold for what is considered reasonable and proportionate expenditure.

Note: If you are unable to implement suitable measures that eliminate or minimise the risk to an acceptable level, due to cost or for any other reason, you should not undertake the transport activity

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Sources that may help you remain up to date with best practice and what is reasonably practicable

Sources of advice and information may include the following:

• RICPs
• the HVNL and regulations
• other laws that relate to managing hazards and risks – such as, work, health and safety laws
• standards published by accredited bodies such as Standards Australia
• NHVR publications that provide guidance and practical advice
• industry publications about what is best practice
• safety and instruction manuals
• reports and findings following investigations of safety incidents and near misses (internal and external)
• subject matter professionals
• Commonwealth, state or territory body publications on relevant topics – such as, transport activities, safety and risk management
• scientific, academic or technical peer-reviewed literature on relevant topics – such as, transport activities, safety and risk management

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