A recent appeal in the South Australian Supreme Court gives some insight into what may be considered a reasonable excuse under the Heavy Vehicle National Law (HVNL) where the principal obligations generally have very similar wording such as “a person who drives, or permits another person to drive, a heavy vehicle on a road must ensure the vehicle is compliant with requirements applying to the vehicle, unless the person has a reasonable excuse”.

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Lack of knowledge or awareness

At the trial, the employer contended that it had systems in place for the safe transport of the load that it believed was to be transported. It further contended that it had trained the driver in these systems and that, on discovering that there was a different load to be transported, the driver should have contacted his employer who would have taken alternative steps to ensure safe transportation of the smaller load. The employer submitted that their lack of knowledge or awareness in those circumstances was a reasonable excuse, the Magistrate agreed and found them not guilty. 

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The Appeal

In their appeal the NHVR contends that the Magistrate’s finding that the employer had a reasonable excuse was not open on the evidence because the finding was, in effect, that a lack of specific awareness on the part of the employer was sufficient. This, it is said, has a tendency to undermine the aims of the HVNL. They further contend that it was not open to the Magistrate to find that, through its training of the driver, the employer created circumstances where it had a reasonable expectation that the driver would identify that there was an issue that required him to contact the respondent. 

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Consideration

This is an offence of strict liability.  The NHVR did not have to prove that the employer knew that a loading requirement was not complied with. The HVNL seeks to fulfil its objectives by imposing requirements on those who permit others to drive a heavy vehicle on the road to ensure compliance with loading requirements.

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The Magistrate noted that the HVNL places a heavy burden on companies and drivers to:

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…ensure that safety, as opposed to profit or efficiency is the paramount consideration.  To this end while the driver of a heavy vehicle is ultimately responsible for matters such as proper load restraint, the existence of liability also for the driver’s employer, suggests that the legislation seeks to place an obligation on haulage companies to surround their drivers with the right training, equipment, and support. 

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The Magistrate went on to say that, considering the purpose of the HVNL, the words “reasonable excuse” must operate: 

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…so as to encourage proper training, equipping and support without punishing those employers who put these resources in place and yet failings beyond their knowledge or control render them ineffective. 

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The Magistrate’s reasons, read as a whole, indicate his view that the employer was only able to establish a reasonable excuse if it could demonstrate that its training, and policies were such that it had a reasonable expectation that the driver would identify a problem with the load and contact them.

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Conclusion

The finding of reasonable excuse rests on the employer’s expectation that, due to a combination of training, policies and instruction, the driver ought to have identified an issue and communicated this to them, because the employer could not demonstrate clearly that their training, policies and instructions would have made sure that the driver identified the issue and contacted them, the appeal was allowed.

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Key takeaways

• Ensure that the training and induction of each driver is documented and records are generated for each driver
• Ensure that the key messages from your safety management systems are reinforced with the drivers (toolbox talks, newsletters, non-conformance management processes)
• Ensure that you are providing (and can demonstrate providing) the right training, equipment and support for your drivers to enable them to comply with the obligations of the HVNL and Road Rules.  

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