In brief - Driver did not check that vehicle had been loaded properly
The NSW Supreme Court has upheld the decision that a vehicle operator could not claim the "reasonable steps" defence after a breach of the mass requirement of the Road Transport (Vehicle & Driver & Management) Act because he did not check that a forklift operator had loaded the truck as instructed. This decision is relevant to the effect of chain of responsibility law on the road transport industry.
Freight carrier prosecuted for breach of mass requirements of Act
In a decision handed down on 30 August 2013 in the NSW Supreme Court, reconsideration was given as to whether a Magistrate had failed to decide correctly whether reasonable steps had been take to avoid contravention of the mass requirements under the Road Transport (Vehicle & Driver & Management) Act 2005 (NSW) (The Act).
In the case of Western Freight Management Pty Ltd v Roads and Maritime Services New South Wales  NSWSC 1123, Justice Davies considered an appeal from a Magistrate at Katoomba Local Court.
The carrier was prosecuted for a breach of Section 56 of the Act, which states that the operator of a vehicle is guilty of an offence if a breach of a mass, dimension or load restraint occurs. However, for all minor risk breaches and for substantial or severe risk breaches of a mass requirement, the "reasonable steps" defence is available.
Did the driver take all reasonable steps to prevent the contravention?
There was no dispute that Western Freight Management was the operator of the vehicle. The question was whether a reasonable steps defence had been made out.
Section 87 sets out the reasonable steps defence for mass requirements of drivers, operators and owners.
That section provides that the reasonable steps defence is open to the defendants if the defendant establishes that it did not know and could not reasonably be expected to have known of the contravention and had taken all reasonable steps to prevent the contravention.
But, notably, Section 87(3) states that to be satisfied that the defendant or driver took all reasonable steps to ascertain the mass of a load, the court has to be satisfied that either the load had been weighed, or that the defendant or driver had sufficient and reliable evidence to calculate the weight of the load.
Forklift operator did not distribute load according to truck driver's instructions
The carrier collected goods from a company called Minova. The driver instructed the Minova forklift operator to distribute the load in a certain configuration and he then watched the truck being loaded from a distance whilst talking to other drivers during the process. The forklift driver did not carry out the truck driver's instructions, but the truck driver assumed that the forklift operator was "doing his job properly".
Although the driver had the power to require the forklift operator to reload the truck if not loaded properly, the Magistrate found that the driver did not check the load adequately prior to driving out of the Minova premises and the driver failed to take reasonable steps, relying instead on the presumed professionalism of the forklift operator.
Was the prosecution obliged to specify the reasonable steps the driver should have taken?
In both the Magistrates Court and on appeal in the Supreme Court, it was maintained that the High Court decision in Kirk v Industrial Court of NSW  239 CLR 531 suggested that there was an obligation on the prosecution to specify as part of the charge the reasonable steps which it contended that the carrier should have taken to make out the defence under Section 87.
But Justice Davies considered that the legislation now being considered was sufficiently different from that considered in the Kirk decision to make that decision distinguishable on five grounds.
• Unlike in the Kirk situation, the provisions in the section were specific, so the carrier knew what charge it had to meet, whereas in Kirk the offence was more general in nature.
• There was nothing said in Kirk that suggested that there was an obligation on the prosecutor in the charge laid to negative the defences that were provided in the Act or to specify that it was reasonably practicable to comply with some part of the Act or regulations.
• The Act itself does not require any specification of steps by the prosecution.
• The provision of section 87 places the onus on the defendant to establish that it took all reasonable steps.
• Section 88 of the Act sets out the matters that a court may have regard to in considering whether the reasonable steps defence has been made out.
Driver failed to check that truck had been loaded as he instructed
In the Supreme Court, Justice Davies reviewed the evidence given in the Magistrates Court. He expressed the view that what the evidence showed was that the driver had a number of opportunities to ascertain that the load had not been loaded as he had instructed, but did not bother checking that it had been done that way, due to pressure to move his vehicle from the loading area.
There was also consideration as to whether the Magistrate erred in law by failing to take into account the under declaration of the pallet weights by Minova.
Although not referred to in her judgment, the Magistrate did say in submissions on the appropriate penalty: "I didn't mention it in my decision because it really complicates the matter. In the end, if you get down to it, it was basically just an axle overload."
Failure of reasonable steps defence
Justice Davies considered that there were problems with the construction of Section 87(3)(b) (which relates to the driver of the vehicle being in possession of sufficient and reliable evidence to calculate the weight of the load), because if the driver is given wrong information from the consignor, it cannot be said that the information is "reliable". However, he found that ultimately the reasonable steps defence failed because the driver failed to ensure that the trailer was loaded as directed.
The Judge also rejected as an irrelevant consideration that the carrier now weighs trailers on a weighbridge following loading.
Scale of penalty appropriate in view of prior breaches
Although the maximum penalty was $22,000, the Magistrate imposed a penalty of $3,000 and ordered the carrier pay $83 in court costs and professional costs of $3,300. The fine imposed exceeded that in the penalty notice, which was $853. However, taking into account prior breaches by the plaintiff and the maximum penalty, the fine imposed was considered appropriate.
Prosecution not obliged to identify what reasonable steps should have been taken
The decision is a useful one in its examination of the reasonable steps defence and confirms that there is no principle that suggests that the prosecution in the charge itself must identify the reasonable steps that ought to be taken.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.