Transport Operator Convicted Under Chain of Responsibility Liability: Landmark Case

In a warning to Australian transport businesses, an operations manager of the company employing a truck driver involved in a crash that killed four people has been found liable under the Heavy Vehicle National Law (HVNL). In January 2024 the company's manager was sentenced to three years' jail time, $100,000+ in penalties and costs, and a 12-month bar on other transport roles, for his part in allowing a driver under the influence of drugs to operate a heavy vehicle.

This is the first time the National Heavy Vehicle Regulator¹ has brought charges against a staff member for failing in their primary duty, as opposed to prosecuting the employer. The transport company and two of its executives have also been convicted of manslaughter on the grounds that the business's supposed safety policies and systems were not enforced or adequately implemented or adopted.

These convictions demonstrate the scope of updated transport chain of responsibility (CoR) liability² laws which came into effect in 2018. The changes made it an offence to ask, direct, require or enter into a contract with the driver of a heavy vehicle, or any other person in the transport operation's chain of responsibility, to drive while impaired.

What are the transport CoR penalties for failure to observe primary duties?

CoR liability covers three categories of offences for failing to comply with primary duty obligations, with escalating penalties. The manager concerned was convicted of a Category 1 offence.

• Category 1 offences (conduct that recklessly exposes an individual to a risk of death, serious injury or illness): maximum penalty for an individual $300,000 and/or five years' imprisonment. Fine of up to a $3 million for a corporation.
• Category 2 offences (conduct that contravenes primary duty obligations and exposes an individual or group to a risk of death, serious injury or illness): maximum penalty for an individual $150,000. Fine of $1.5 million for a corporation.
• Category 3 offences (where a person has a primary duty and contravenes that duty): maximum penalty for an individual $50,000. Fine of up to $500,000 for a corporation.

Which transport personnel are subject to CoR liability?

Corporates, directors, partners and managers are all accountable for the actions of the people under their control — and they can be prosecuted for failures of duty in operations, even without a safety incident occurring. In this case the truck driver was under the influence of drugs.

Under the HVNL the primary duty obligation has been extended to potentially include anyone who
consigns, loads or receives transportable goods as part of their business operations.

These roles can include:

• loading manager (premises are operated for loading/unloading an average of five heavy vehicles daily) responsible for the operation of the regular loading or unloading, or assigned by the person responsible for supervising, managing or controlling activities carried out by the loader
• consignee or consignor named in the documentation for road transport of the goods, requestor of transport of goods by the vehicle operator
• loader of goods immediately before the operator transports them or at an unattended storage/collection location
• importer of goods into Australia
• operator who controls or directs the use of a heavy vehicle
• scheduler of goods' and/or passengers' movements, or drivers' work and rest times
• packer who either packages, assembles or supervises packing of goods
• loader and unloader of goods or containers onto the vehicle
• employer of heavy vehicle drivers in any capacity
• executive officer directing or managing a corporation
• prime contractor engaging drivers under contract.

This conviction of the truck driver's supervisor and senior managers demonstrates that in serious cases, especially where fatalities are involved, those in the chain of responsibility can and will be held liable.

How Gallagher can help transport businesses move forward with confidence

Risk management is a key area of focus for Gallagher brokers when working with transport businesses to ensure their exposures are covered.

To leverage our extensive expertise and find out more about what our transport industry broking specialists can do to enable your business to keep moving in the right direction with confidence, get in touch.

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