New “chain of responsibility” laws widen the criminal law liability net for company directors and officers in the transport industry

Company directors, senior managers and other employees of companies using vehicles to haul goods in Western Australia can now be held liable for the acts and omissions of their drivers transporting illegal loads.

New laws kicked in on 27 April 2015 which introduced “chain of responsibility” laws for Western Australia’s transport industry.  They include new rules dealing with the maximum allowable mass, dimension and load restraint (MDLR) requirements for transported goods.

The laws are contained in the Road Traffic (Vehicles) Act 2012 and its associated regulations.

Previously, where a vehicle was in breach of MDLR rules, only the driver could be found legally responsible and liable for sanctions.  The new chain of responsibility laws mean all people involved in transportation of goods can potentially be held liable for breaches, including consignors, drivers, vehicle owners, loaders, packers, management and company directors, partnerships, corporate bodies and unincorporated associations.

The new laws also increase penalties for breaches.

WA’s Minister for Transportation, the Hon. Dean Nalder MLA, said the new laws were designed to improve road safety and create a more level playing field for transport businesses by making it difficult for those operating outside the law to gain a competitive advantage through overloading.

Companies that broke the law by overloading vehicles gained an unfair advantage over rivals by (unlawfully) carrying more goods than their competitors for a trip, but exposing the road-using public, their drivers and infrastructure to significant dangers of materials spilling from their illegal loads.  

A “reasonable steps” defence might apply to people “in the chain” charged with an offence under the new laws.  If a person involved in the chain of responsibility is able to show that they were not aware that an offence was committed and they either took all reasonable steps to prevent an offence, or, had no reasonable steps available to them to prevent the offence, then they may have a valid defence to a charge.

Factors such as the regular maintenance of vehicles and equipment, whether accurate and safe methods of weighing vehicles have been used, and the education and supervision of staff can be taken into consideration by the court considering a reasonable steps defence.

WA is the last state to introduce chain of responsibility laws.  It is a key concept of the National Heavy Vehicle Law (NHVL) which has been adopted in all states and territories, except the Northern Territory.

Some aspects of the national chain of responsibility regime as set out in the NHVL have not been adopted in WA.

First, offences relating to speed and fatigue remain driver only offences.  In other states, the NHVL extends responsibility to the chain, such that employers can be held responsible for their drivers speeding or driving tired if they engage in business practices that encourage such behaviour.

Secondly, the WA laws apply to any vehicle, whether it be heavy or light, private or commercial.  Other states limit the chain of responsibility to vehicles over 4.5 tonnes.

The WA Road Transport Association has indicated that the biggest problem for everyday drivers will be that the new MDLR rules mean the days of securing a load in a trailer with a piece of rope are gone, and that road users need to be aware of the new restraint requirements.

The WA Pastoralists and Graziers Association has said that the new rules are unfair for farmers, and cited the example of a grain carrier losing its load in a road accident, which could result in a farmer being held partly responsible.

The Australian Trucking Association and Australian Logistics Council has previously indicated that while it supports nationally harmonised laws regarding regulation of the transport sector, chain of responsibility laws need to be fair and protect innocent parties.

Laval Legal comment

Although transport companies should already be operating according to best practice, the introduction of chain of responsibility laws in Western Australia provides an extra incentive to ensure that internal processes for complying with road safety rules are in place and operating appropriately.

The transport and trucking industry has in recent years experienced changes to the way it is regulated.  The introduction of the NHVL and the Road Safety Remuneration Tribunal has seen the passage of nationally harmonised laws designed to improve road safety, and an increase in regulatory requirements that flow from that.

WA’s chain of responsibility laws have the potential to affect everyone, from the directors of large trucking companies carting goods across the Nullarbor to individuals taking their rubbish to the local waste disposal depot.  

All road and vehicle users need to educate themselves about the new laws and ensure that they and their associates are compliant and avoid the risk of personally falling foul of the law.