Chain of Responsibility: Transport Company & Schedulers Fined

A recent conviction against a New South Wales transport company and two schedulers is a timely reminder for all parties in the chain of responsibility to review their duties and obligations under the Heavy Vehicle National Law (HVNL).

The HVNL currently applies in all Australian states and territories except Western Australia and the Northern Territory. The law covers the use and operation of heavy vehicles with a gross vehicle mass or aggregate trailer mass over 4.5 tonnes.

What is the chain of responsibility?

Under section 26C of the HVNL, the safety of transport activities involving heavy vehicles is the shared responsibility of each party in the chain of responsibility. These laws are designed to prevent driver fatigue, overloading, speeding, and other safety risks inherent with the operation of heavy vehicles.

While each party within the chain of responsibility has a primary duty to ensure the safety of their transport activities relating to the vehicle, the level and nature of each party’s obligations depend upon:

• the functions the person performs or is required to perform as opposed to their job title or the functions described in their employment contract;
• the nature of the public risk created by the carrying out of the transport activity; and
• the party’s capacity to control, eliminate or minimise the risk.
  
  

If a person in the chain of responsibility fails to comply with the duty, then that person can be found guilty of an offence. Whether the conduct constitutes a Category 1 (section 26F), Category 2 (section 26G), or Category 3 (section 26H) offence depends on the nature of the offending.

Critically, a person or company can be prosecuted for contravening their primary duty before an accident or incident has even occurred. That is because each party within the chain of responsibility has a proactive obligation under the HVNL to eliminate and mitigate public risks so far as is reasonably practicable. 

Who is a party in the chain of responsibility?

A person performing any of the following functions will be a party in the chain of responsibility for a heavy vehicle:

Importantly, a person can have more than one duty because of the functions they perform, and these duties cannot be transferred to another person.

A driver of a heavy vehicle is not a party in the chain of responsibility unless they perform another function such as a loader of goods. 

Company and schedulers fined

In Transport for New South Wales v De Paoli Transport Pty Ltd [2022] NSWSC 1678, a New South Wales transport company and two schedulers were collectively fined $210,000 for failing to comply with their obligations under the HVNL as parties in the chain of responsibility.

 
The company, De Paoli Transport Pty Ltd, specialised in linehaul freight and operated a fleet of 32 vehicles between Leeton and Brisbane, as well as to Sydney and Melbourne. Under the HVNL, it was a party in the chain of responsibility as an employer of drivers and an operator of heavy vehicles and, therefore, had a duty to ensure, so far as reasonably practicable, the safety of transport activities.

 
Consequently, the company was found to have committed a Category 2 (section 26G) offence by contravening the primary duty under HVNL and fined $180,000. The company’s failures included not:

• continuously assessing and reviewing risks within their transport operations;
• ensuring drivers held current and valid licenses;
• ensuring drivers were not speeding;
• ensuring drivers were fit to drive a heavy vehicle by a manager or supervisor before the start of each trip; and
• providing training to drivers on calculating their drive and rest hours and filling out their log books. 

George De Paoli and Jonathon De Paoli worked at the company and were responsible for scheduling drivers’ trips to and from Brisbane, Sydney and Melbourne. They were both parties in the chain of responsibility as a scheduler of drivers and heavy vehicles and had a duty to ensure, so far as reasonably practicable, that drivers’ trips were safe.

The two individuals were found to have each committed a Category 3 (section 26H) offence by contravening the primary duty under HVNL and fined $15,000 each. Their failures included not:

• ascertaining whether drivers had secondary employment that may have impacted on their level of fatigue;
• ensuring that scheduling took into consideration any delays encountered by drivers;
• making sure that drivers were not driving in breach of their work/rest hours;
• referring to and using a functioning GPS system to ascertain driver working hours when scheduling trips; and
• making sure that drivers had correctly filled out their log books prior to scheduling their trips.