Transport for New South Wales v De Paoli Transport Pty Ltd [2022] NSWSC 1678 (9 December 2022)
A recent sentence in the NSW Supreme Court has sent a strong message to businesses in the transport industry across Australia that breaches of obligations and duties under the Heavy Vehicle National Law (NSW) ("HVNL"), particularly the duty to ensure safe transport activities, will be treated seriously.
On 9 December 2022, NSW Supreme Court Justice Richard Cavanagh upheld an appeal against the size of the penalties imposed on a trucking company, its director, and an employee for breaches of the HVNL relating to scheduling, fatigue, and speed. Justice Cavanagh went as far as to note the penalties were woefully inadequate, and he significantly increased the company's fine from $15,000 to $180,000, as well as the company director and employee's fines to $15,000 each.
The magistrate's reasoning for the previously low-level fines was that the lack of any road accidents by the company's drivers was a mitigating factor. However, the prosecution argued that the lack of incidents was merely "evidence of good luck" as opposed to a sign of adequate safety controls. Justice Cavanagh also stressed that it was important to impose adequate penalties on companies in order to discourage others from committing similar breaches.
It was noted during the proceedings that the company failed to provide training regarding driver fatigue, calculating rest breaks, filling out logbooks or on policies and procedures relating to speeding and fatigue. The company director stated that he had "done his best" by verbally giving directions to employees on these matters, however there were no formal records of such directions, communications, or training.
The company had a National Heavy Vehicle Accreditation Scheme (“NHVAS”) 'Basic Fatigue Management Manual' which included the issue of driver fatigue, however it only noted that “a driver must not drive if not fit for duty”. The company also had a 'What is fatigue' fact sheet and 'Driver Fatigue Management Policy', however there were no documented processes for assessing the fitness of drivers prior to driving.
The company director also admitted that although it was a requirement for drivers to record their work and rest hours in logbooks, he was aware that they did not always do so accurately.
This case and the sentencing clearly indicates that breaches of obligations and duties under the HVNL will not be taken lightly. Accordingly, it is crucial for businesses, employees, and all parties in the Chain of Responsibility ("CoR") to ensure they have taken all reasonable steps to meet these duties. Transport businesses should have developed and implemented adequate policies, procedures, instructions, and training relating to the safety of their transport activities, especially in relation to scheduling, fatigue, and speed. Similarly, as highlighted in this case, it is imperative that such policies, procedures, instructions, and training are documented and recorded. Lastly, it is critical that businesses take steps to ensure the policies and procedures are being followed. In this case – there should be processes in place to facilitate the checking of drivers' logbooks to ensure that they are recording work and rest hours as required, and if this is not being done corrective action should be taken immediately.
Please reach out to Darren Sharry and the DWF Risk team if you require assistance in understanding, meeting and managing your WHS and HVNL duties.
