Roads and Maritime Services v Troy Heavy Haulage Pty Ltd
[2013] NSWLC 21
•10 October 2013
Local Court
New South Wales
Medium Neutral Citation: Roads and Maritime Services v Troy Heavy Haulage Pty Ltd [2013] NSWLC 21 Hearing dates: 25/07/2013, 13/09/2013 Decision date: 10 October 2013 Jurisdiction: Criminal Before: Huntsman LCM Decision: Catchwords: ROAD TRANSPORT - breaches of mass, dimension and load restraint requirements - severe risk breach - exemptions by permits and notices - large indivisible item - container designed for multi-modal travel - container weight declaration - reasonable steps defence Legislation Cited: Roads Act 1993
Road Transport (General) Act 2005
Road Transport (Mass, Loading and Access) Regulation 2005
Road Transport (Vehicle Registration) Regulation 2007Cases Cited: John Tilman v Daromin Engineering Pty Ltd (NSWSC, unreported, Dowd J, 6/11/2000) Category: Principal judgment Parties: Roads and Maritime Services (RMS)
Troy Heavy Haulage Pty Ltd (Defendant)Representation: Mr Ilkovski (for the Defendant)
Ms Tiedt (for the RMS)
File Number(s): 2013/971717
Judgment
Background
The Defendant, Troy Heavy Haulage Pty Ltd, is charged with three offences under section 56 of the Road Transport (General) Act 2005 (the Act), the applicable legislation on the date of the alleged offences. The Defendant is charged as the operator of the heavy vehicle. In summary, it is alleged that the Defendant's vehicle was in breach of mass, dimension and load restraint requirements.
On the date of the offences, the Defendant's heavy vehicle collected a shipping container at Botany, which had just cleared quarantine. The weight and size of the container was noted by staff at the Defendant's office, and one of the Defendant's drivers was directed to collect the container. The shipping container was packed with a load of five forklift machines, forks and masts.
It is alleged that on 21 September 2012, at 1.40pm, the Defendant's vehicle was being driven in breach of:
(1) Mass requirement;
(2) Dimension requirement;
(3) Load restraint requirement.
The details, alleged by the prosecution, include that the quad axle group mass exceeded 20.00 tonnes. The prosecution states that the mass on the quad axle group was measured at 32.15 tonnes, which exceeded the allowed mass by 12.15 tonnes, or 60.75%, and was categorised as a "severe risk" breach.
The dimension requirement was that the length of the vehicle could not exceed 19 metres. The length of the vehicle was measured at 21.05 metres, which exceeded the allowed length by 1.05m, and was characterised as a "severe risk" breach.
The load restraint requirement was that an appropriate method must be used to restrain the load on a vehicle, and the Inspector from Roads and Maritime Services (RMS) determined the method of load restraint was inappropriate, and was characterised as a "severe risk" breach.
Issues
The measurements relied upon by the prosecution as to the weight/mass and dimensions of the Defendant's vehicle were not in dispute.
The prosecution and defence indicated that issues for determination included legal interpretation as to the provisions of the Act and Regulation relating to permits and notices. The Defendant contends the conduct was lawful because the vehicle was being driven pursuant to a Class 1 permit and Class 1 Notice issued pursuant to the relevant Regulation. It was submitted by the Defendant that the permit operated to exempt the Defendant from compliance with certain dimension and mass requirements. The prosecution maintains that the permit and notice do not apply to exempt the Defendant, given that the terms of the notice do not apply to a container used for multi-modal transport and only apply to carriage of a large indivisible item. The Defendant states that the shipping container is a "large indivisible item"; the prosecution maintains that it is not.
Other issues included, if there were breaches, whether such breaches were severe risk breaches.
The Defendant relies on the "reasonable steps defence" in sections 87 and 89 of the Act, stating that the Defendant relied on the container weight declaration it received from Speed Mark Australia Proprietary Ltd.
The legislation places an evidentiary burden on the Defendant in relation to the "reasonable steps defence".
The Defendant states in respect of the severe risk breach of the load restraint requirement, that the Defendant used an appropriate method to restrain the load. The Defendant's submissions and evidence are further detailed below.
The legislation providing for the offences and the alleged breaches
The Defendant is charged with three offences pursuant to s 56 of the Act, which provides:
56 Liability of operator
(1) A person is guilty of an offence if:
(a) a breach of a mass, dimension or load restraint requirement occurs, and
(b) the person is the operator of the vehicle or combination concerned.
Maximum penalty: see Table to Division.
(2) If the breach concerned is a minor risk breach, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
(3) If the breach concerned is a substantial risk breach or a severe risk breach of a mass requirement, a person prosecuted for an offence under this section has the benefit of the reasonable steps defence for an offence under this section.
Section 38 of the Act provides for categories of breaches of length dimensions:
38 Lower limits-overall length breaches
(cf model provisions, s 75)
(1) This section applies to a dimension requirement imposed by reference to the overall length of a vehicle or combination with or without a load....
...
(3) Severe risk breach
The lower limit for a severe risk breach of a dimension requirement to which this section applies is 0.60 metre over the maximum permissible dimension limit.
The definitions section (s 3) of the Act provides:
"dimension requirement" means a requirement of an Australian applicable road law that relates to the dimensions of a vehicle or combination or a load or component of a vehicle or combination, including (for example):
(a) the dimensions of a vehicle or combination, disregarding its load (if any), or
(b) the dimensions of a vehicle or combination including its load, or
(c) the dimensions of the load on a vehicle or combination, or
(d) the internal measurements of a vehicle or combination, including (for example) the distance between:
(i) components of a vehicle or combination, or
(ii) vehicles in a combination, or
(iii) a vehicle in a combination and a component of another vehicle in the combination
Section 34 of the Act provides for breaches of mass requirements, and the definitions section of the Act (s 3) defines the meaning of "legislatively specified mass requirement" and "mass requirement":
34 Lower limits-mass breaches
(cf model provisions, s 71)
(1) This section applies to a mass requirement imposed by reference to:
(a) a legislatively specified mass requirement, or
(b) a manufacturer's mass rating, or
(c) the lower of:
(i) a legislatively specified mass requirement, and
(ii) a manufacturer's mass rating,
for a vehicle or combination, or for any component of a vehicle or combination, or for any load in or on a vehicle or combination.....
...
(3) Severe risk breach
The lower limit for a severe risk breach of a mass requirement to which this section applies is 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne.
Note. 120% of the maximum permissible mass is equivalent to the permissible mass plus an additional 20%.
"legislatively specified mass requirement" means:
(a) a mass requirement specified in an applicable road law or in another law of this jurisdiction, or
(b) a mass requirement specified in writing under the authority of an applicable road law or of another law of this jurisdiction, or
(c) a mass requirement indicated by a sign erected or displayed under the authority of an applicable road law or of another law of this jurisdiction.
"mass requirement" means a requirement of an Australian applicable road law that relates to the mass of a vehicle or combination or the mass of or on any component of a vehicle or combination, and includes:
(a) a requirement of an Australian applicable road law concerning mass limits relating to:
(i) the tare mass of a vehicle or combination (that is, the actual mass of the vehicle or combination excluding any load in or on the vehicle or combination), or
(ii) the gross mass of a vehicle or combination (that is, the unladen mass of the vehicle or combination together with any load in or on the vehicle or combination), or
(iii) the mass of the load in or on a vehicle or combination, or
(iv) the mass on a tyre, an axle or an axle group of the vehicle or combination, and
(b) a requirement of an Australian applicable road law concerning mass limits relating to axle spacing, and
(c) mass limits set out on signs erected or displayed under an Australian applicable road law (for example, a sign-posted bridge limit).
The Act provides for categories of breaches: minor, substantial and severe, in respect of mass, dimension or load restraint requirements:
30 Categories generally
(cf model provisions, s 67)
For the purposes of this Act, breaches of mass, dimension or load restraint requirements are categorised as follows:
(a) minor risk breaches,
(b) substantial risk breaches,
(c) severe risk breaches.
33 Severe risk breaches
(cf model provisions, s 70)
(1) Mass requirement
A breach of a mass requirement is a severe risk breach if the subject-matter of the breach is equal to or greater than the lower limit for a severe risk breach of the requirement.
(2) Dimension requirement
A breach of a dimension requirement is a severe risk breach if the subject-matter of the breach is equal to or greater than the lower limit for a severe risk breach of the requirement....
(3) Load restraint requirement
A breach of a load restraint requirement is a severe risk breach if the loss or shifting of the load concerned:
(a) has already occurred or is imminent, and
(b) is assessed by the officer or court concerned to involve an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity.
Terms are defined in the dictionary to the Regulation:
"axle" means one or more shafts positioned in a line across a vehicle, on which one or more wheels intended to support the vehicle turn.
"axle group" means a single axle group, tandem axle group, twinsteer axle group, tri-axle group or quad-axle group.
"axle load" means the total load, determined in accordance with this Regulation, transmitted to the road by all wheels of a vehicle which are mounted on any axle.
The Act provides that where a court is satisfied that there has been a breach, but not the breach as alleged in the prosecution, then it may treat the breach as a "lesser" breach as described in s 61:
61 Default categorisation
(cf model provisions, s 98)
(1) If a court is satisfied that there has been a breach of a mass, dimension or load restraint requirement but is not satisfied that the breach is a substantial risk breach or a severe risk breach, it may treat the breach as a minor risk breach.
(2) If a court is satisfied that there has been a breach of a mass, dimension or load restraint requirement and that the breach is at least a substantial risk breach but is not satisfied that the breach is a severe risk breach, it may treat the breach as a substantial risk breach.
The Act provides for the making of regulations.
26 Regulations may impose restrictions
(1) The regulations may impose mass, dimension or load restraint restrictions with respect to the use of roads by vehicles.
(2) A person must not drive, or cause to be driven, along a road any vehicle that contravenes the mass, dimension or load restraint restrictions imposed by the regulations otherwise than in accordance with an excess permit.
Maximum penalty: 30 penalty units.
(3) Subsection (2) does not apply to a heavy vehicle or heavy combination.
Note. Offences relating to breaches relating to heavy vehicles or heavy combinations are contained in regulations made under this Act and are also dealt with under Part 3.3.
The evidence
Evidence was given by Bruce Keys, an Inspector with RMS, that he was on duty with another inspector on 21 September 2012. (At the time of the hearing of this matter the other inspector was unavailable being overseas.)
Mr Keys observed a combination heavy vehicle travelling along the road, the combination comprised a prime mover, towing a low loader trailer bearing Queensland registration plates ("the combination"). The inspector stopped the vehicle, requested that the driver provide his drivers licence and the container weight declaration. The documents were produced by the driver. The Inspector observed that the combination was loaded with a 40 foot high cube shipping container. The container was of a type of freight container designed for carriage by road, rail or sea. The inspector instructed the driver to take the combination and its load to the nearest inspection station for the purpose of completing the compliance check.
The inspector gives evidence of measurement, at paragraph 15 of his written statement. The vehicle was weighed using portable weighing devices. The weights were recorded on the breach report.
Inspector Keys gave evidence of a conversation with the driver where he asked whether the driver was operating under any notice or permit for his load and the driver produced a Mass/oversize permit; an oversize permit; and the Roads and Maritime Services publication "Operating Conditions: Specific permits for oversized and over mass vehicles and loads".
Inspector Keys used a certified measuring tape to measure the length of the combination, which was of overall length of 21.15m. He applied measurement adjustment of hundred millimetres by reducing the length to 21.05m. Certificates issued in accordance with s 230 of the Act were annexed to Inspector Key's affidavit.
Inspector Keys gives evidence of a conversation with the driver wherein the driver said that he was directed to drive his vehicle by the company, the company gave him pick up details and he had made an attempt to ascertain the weight of his vehicle prior to the commencement of his journey "just off my on-board weighing gauges". Inspector Keys states he asked the driver whether he was aware that the Class 1 notice 2012 did not allow a vehicle or combination to carry a loaded or empty freight container designed for multi-modal travel and he said he was not so aware.
A number of other documents were annexed to Mr Key's affidavit including photographs, breach report, and various certificates issued under legislation.
The documents produced by the driver included a permit and operating conditions, but not the Class 1 Notice.
Inspector Keys states that the driver was instructed to open the shipping container so that restraint of its contents could be inspected. As the driver opened the doors, Inspector Keys observed that the load in the rear section, up against the container doors, moved. Inspector Keys stated that as the container door was opened, by the driver, the load up against the back door shifted when the back door of the container was opened. It shifted at least 50mm. He also saw the load was not adequately restrained within the container. The forklifts, and the masts and forks for the forklifts, were separately stored in the container. The tie-wires restraining the forks and masts were broken. Inspector Keys took photographs of the broken tie-wires. Inspectors Keys could see, from looking in from the back of the container, that the tie-wires appeared to be the only load restraint in use. There was also evidence of damage to the back of one of the forklifts, which Inspector Keys believed was due to either the forklift, or a mast, moving within the container.
Under cross-examination Inspector Keys agreed that the shipping container was affixed to the trailer by twist locks, which was the most common method. He agreed that the photographs of the load inside the container were taken from the back of the vehicle and he did not recall stepping inside the truck or container to have a closer inspection. He agreed it was a long container, which was pretty much full. There were five forklifts in there. He prepared the breach report that day. He agreed he did not have any discussion with the driver about restraint of load, he says he did not ask the driver about this, only asked him to open the door. He agreed that there was a publication in relation to load restraint, called the Load Restraint Guide 2004, to which inspectors of RMS may refer. Inspector Keys could not recollect if he referred to it on this occasion when making his breach report, but observed he has a copy of this document in his vehicle. Inspector Keys also gave evidence of his opinion that a shipping container is not a "large indivisible item" because goods can be removed from it.
Inspector Keys stated he had been an inspector with RMS for four years, and was a diesel mechanic for 22 years previously. His experience in relation to restraint of loads was during his time with RMS. He has however undertaken thousands of intercepts of vehicles, as an inspector, over the preceding four years. Load restraint issues were raised in about 5 to 10% of these intercepts. When he became an inspector there was a six-month training period that included assessing load restraint and he has received training in how to properly restrain loads. Examples of improper load restraint included not having adequate straps, tailgates coming open and losing a whole load, and shipping containers falling over on their side. In his opinion the load on this occasion was not adequately restrained within the container. Adequate restraint would include the use of tie-downs, as in ratchet straps to tie down the load.
The Defendant produced documents through its witness, Ms Churchill, administrative officer in the employ of the Defendant company. As administrative officer her job normally involves occupational health and safety issues, however she also works relieving other staff, and has relieved allocator positions since her time at the company. She was performing this role on the date of the alleged offences. Ms Churchill stated on receiving notice that the container had just been released from quarantine, she asked the operations manager for a vehicle suitable to collect, being a vehicle that has trailer to carry a container, being a vehicle of suitable size with container locking keys. The operations manager advised her that there was a vehicle in the area which was suitable. She then spoke to the driver. She stated that at the time of the hearing the driver was on location in the Northern Territory and he is an employee of the Defendant company.
She identified documents in evidence (Exhibit 3) - she identified page 2 of the exhibit as the "Arrival Pre-alert" for the container and page 3 as the "Sea Freight LCL Arrival Notice" which indicates that the container is available for collection.
The Arrival notice, according to Ms Churchill, gives information about the container including the container number, the weight, the customer and the arrival location. They use this document as indicator of weight and size. The arrival notice states that the weight is 21320.0kg and Volume 40,000M3, the goods description is "forklifts" and the packages are described as "4PKG (OUTER), 1 (INNER)". Other details include the consigner and consignee, the delivery details and the container number and seal number. It contains a statement:
"this Cartage Advice complies with the requirements of a Container Weight Declaration(CWD) for this shipment, and is intended to, and acts as, as our CWD"
Under cross-examination Ms Churchill indicated that the permits (Class 1 permits) are generally applied for and/or renewed on an annual basis. Annual permits are obtained and carried in vehicles. The operations manager looks after the records as to which driver has which permit. She had no role in organising the notice or permit that the driver carried on the day. She stated the operations manager assigns a vehicle to a job according to the information as to the load, weight etc. If a special permit is required the operations manager will organise this. On this particular day the driver would not have been expecting to collect the container, he was contacted because he was in the area when it was released from quarantine. Ms Churchill states that for a "Container Weight Declaration" the company uses the Arrival Notice.
The legislation pertaining to Notices and Permits, which exempt a vehicle from certain dimension and mass requirements
Section 27 of the Act provides for the issue of "excess permits" for exemptions from the specified mass, dimension, load restraint or access requirements imposed by an applicable road law:
27 Excess permits
(1) The Authority may issue an excess permit in respect of a vehicle.
(2) An excess permit may exempt a vehicle, either unconditionally or subject to conditions, from any specified mass, dimension, load restraint or access requirement imposed by an applicable road law...
The Road Transport (Mass, Loading and Access) Regulation 2005 ("the Regulation") cl 8 and Schedule 1, sets out mass and dimension requirements for heavy vehicles and combinations, and provides for permits and Notices to exempt vehicles from such requirements (Division 3, Part 2, cll 11-16).
8 Heavy vehicles to comply with Schedule 1
(1) Schedule 1 applies to a vehicle or combination to which this Part applies and to a load on any such vehicle or combination.
(2) This clause is subject to any exemption from a requirement of Schedule 1 that is in force under this Regulation.
...
11 Application of Division
(1) This Division and Schedule 2 apply to any of the following vehicles ("Class 1 vehicles"):
(a) a special purpose vehicle,
(b) an agricultural machine or agricultural implement,
(c) a vehicle or combination (including a low loader or load platform combination) that is specially designed for the carriage of a large indivisible item or is carrying a large indivisible item,
that, together with any load, exceeds:
(d) a mass limit in Schedule 1, or
(e) a dimension limit in Schedule 1 or the Road Transport (Vehicle Registration) Regulation 2007.
(2) Despite clause 7, this Division and Schedule 2 also apply to a vehicle that is being used as a pilot vehicle or escort vehicle.
(3) This Division and Schedule 2 do not apply to a vehicle or combination:
(a) that is a road train or B-double, or
(b) that is carrying a loaded or empty freight container designed for multi-modal transport.
By Division 3 of Part 2 of the Regulation (which provides for grants of oversize/overmass permits) a permit can be issued to exempt the vehicle from the mass and dimension requirements in Schedule 1 of the Regulation, and dimension requirements in the Road Transport (Vehicle Registration) Regulation 2007 (refer cl 11(1)(d) and (e)). Clause 8 of Schedule 1 of the Road Transport (Mass, Loading and Access) Regulation 2005 provides that the vehicle cannot exceed the dimension requirements in the Road Transport (Vehicle Registration) Regulation 2007 (being 19m - see cl 74 of Schedule 2 of that regulation).
Clause 11 of the Regulation provides that the Division applies to a combination, if it is a combination specially designed for the carriage of a large indivisible item or is carrying a large indivisible item, that, together with any load, exceeds a mass or dimension limit in Schedule 1 of the Regulation or a dimension limit in Road Transport (Vehicle Registration) Regulation 2007.
The position for heavy vehicles under the Regulation is that such vehicles must comply with the mass, dimension and other requirements in Schedule 1 of the Regulation. If Schedule 1 does apply to a vehicle then the mass limit is 6 tonnes on the steer axle, 16.5 tonnes on the tandem axle and 20 tonnes on the quad axle. Heavy vehicles may be exempted from the dimension and mass requirements - clause 8(2) of the Regulation. If the vehicle is exempted and is a combination then Schedule 2 provides the maximum length as 25m. It is not in dispute in the proceedings that the Defendant's vehicle the subject of the proceedings was a "combination having a GCM exceeding 4.5 tonnes" to which Part 2 of the Regulation applied (cl 7).
Division 3 of Part 2 of the Regulation contains cl 11 (application clause) and clauses 12 to 16 dealing with exemptions by permit and notice:
12 Exemption by notice in Gazette
(1) The Authority may, by a Class 1 notice published in the Gazette, exempt Class 1 vehicles from:
(a) a mass or dimension requirement in Schedule 1, other than a requirement that relates to a GVM, GCM or manufacturer's limit, or
(b) a dimension limit in the Road Transport (Vehicle Registration) Regulation 2007...
...
15 Exemption by permit
(1) A person may apply to the Authority for a permit exempting a Class 1 vehicle from a requirement of Schedule 1, clause 21 of Schedule 2 or the Road Transport (Vehicle Registration) Regulation 2007.
(2) An application for a Class 1 permit must be in writing and in a form approved by the Authority.
(3) The Authority may grant a Class 1 permit exempting a Class 1 vehicle from:
(a) a mass or dimension requirement of Schedule 1, other than a requirement that relates to a GVM, GCM or manufacturer's limit, or
(b) a mass or dimension limit in Schedule 1 or the Road Transport (Vehicle Registration) Regulation 2007.
(4) Despite subclause (3) (a), a Class 1 permit may exempt a combination consisting of more than one prime mover or hauling unit from compliance with the individual GCMs of the prime movers or hauling units on condition that the sum of the individual GCMs is not exceeded.
(5) The Authority may grant a Class 1 permit exempting a mobile crane that is a Class 1 vehicle from the prohibition against towing in clause 21 of Schedule 2, subject to the conditions in clause 15A.
Note. Clause 90 of the Road Transport (Vehicle Registration) Regulation 2007 provides that a person or vehicle is exempted from a dimension limit or any other requirement of that Regulation if that person or vehicle is exempted from that limit or requirement under this Regulation.
16 Class 1 permits
(1) A Class 1 permit granted under clause 15 (3) must specify the following:
(a) the Class 1 vehicles to which it applies,
(b) the areas or routes to which it applies,
(c) the provisions of Schedule 1 or the Road Transport (Vehicle Registration) Regulation 2007 from which exemption is given,
(d) the conditions of the exemption,
(e) how long it is to remain in force.
Terms are defined in the dictionary to the Regulation:
"Class 1 notice" means a notice published under clause 14 in respect of a Class 1 vehicle.
"Class 1 permit" means a permit issued under clause 16 in respect of a Class 1 vehicle [Clause 16 refers to a permit granted under cl. 15(3)].
"Class 1 vehicle" means a restricted access vehicle that is:
(a) a special purpose vehicle, or
(b) an agricultural machine or agricultural implement, or
(c) a vehicle or combination, including a low loader or load platform combination, that is specially designed for the carriage of a large indivisible item or is carrying a large indivisible item,
that, together with any load, exceeds:
(d) a mass limit in Schedule 1, or
(e) a dimension limit in Schedule 1 or the Road Transport (Vehicle Registration) Regulation 2007.
"large indivisible item" means an item that:
(a) cannot be divided without extreme effort, expense or risk of damage to it, and
(b) cannot be carried on any vehicle or combination without exceeding a mass or dimension limit in Schedule 1.
"multi-modal transport" means the carriage of goods by road and at least one other of the modes sea, rail or air.
Discussion and findings - loaded or unloaded freight container for multi-modal transport
At Port Botany the sea freight container was loaded on the Defendant's vehicle. The Quarantine Direction Inspection (exhibit 4) indicates that the container had been imported by sea vessel and contained forklifts that originated in China. The Sea Freight documents (exhibit 3) state the container was shipped by sea on a vessel, from Shanghai to Sydney.
As a matter of fact, on the evidence, I am satisfied that the container in this case, being unloaded at Port Botany, after being shipped by sea to Australia, and being subsequently loaded on to the Defendants' vehicle for transport by road, was a freight container designed for multi-modal transport. At the time of the alleged offences the Defendant's vehicle was transporting a loaded freight container designed for multi-modal transport.
Discussion and findings - the Permits
An overmass/oversize permit was issued to the Defendant on 22 March 2012 for the vehicle. An oversize permit was issued for the same vehicle (both permits have start date 22 March 2012, finish date 21 March 2013). The permits are stated to be Class 1 permits issued pursuant to the provisions of clause 15 of the Road Transport (Mass, Loading and Access) Regulation 2005 under the Road Transport (General) Act 2005, and to exempt the vehicle from the requirements of Schedule 1 subject to the conditions stated in the permit. On both permits it states that the permit is in force for dates of travel between the start date and the finish date.
In relation to the overmass/oversize permit, it is stated:
"permit conditions: operating conditions and documents" it states "1) this permit is NOT a complete document; it must be operated in conjunction with the following documents: a) the relevant General Class one Oversize Notice. NOTE: these can be found at [website address stated]........ b) Operating Conditions: Specific permits for oversize and overmass vehicles and loads. The above documents and a copy of this permit must be carried in the driving compartment of the permitted vehicle and produced upon request to any authorised officer......... 3) this permit may be revoked/cancelled/altered by the Roads and Maritime Services at any time"
The oversize permit has identical conditions (1) - (3).
The oversize and overmass/oversize permits exempt the vehicle named in the permits from such dimensional limits:
"as prescribed in Schedule 1, Parts 1 and 2 of the said Regulation subject to the conditions set out in or attached to the permit".
The oversize permit is valid when the vehicle is being used to carry/ tow/ operate an "indivisible item to 4.6 m high on semitrailer; 5.0 m high on a low loader or stepdeck".
The overmass/oversize permits is valid when the vehicle is being used to carry/tow/operate an "indivisible item carried on low loader or Dolly/low loader combination with four tyres per axle".
The Defendant states that having regard to the evidence of Inspector Keys and the permits, if the permits were valid and applied to the Defendant's vehicle it at the time of the alleged offences, then the Defendant would not be in breach based on the measured length of the combination. The permits allow an assessed length of 25m and the length of the truck and trailer combination, the subject of these proceedings, as measured by Inspector Keys, was 21.05m. The Defendant states that Inspector Keys agreed that if the permit at Exhibit 5 was valid and applied to the Defendant's vehicle on the date of the offence, given the maximum weight permitted on the axle groupings when operating under the permit, then the Defendant would not be in breach. The Defendant noted that Inspector Keys denied that the sea freight container was a large indivisible item to which the permit applied. The Defendant maintains it is a large indivisible item.
The Defendant notes that if Schedule 1 applies to the Defendant's vehicle then the mass limit is 20 tonnes on the axle and the length dimension limit is 19.0m. However if the permits apply then the Defendant's vehicle is exempted from these requirements and was not in breach on the date of the offences.
The Defendant also relies on the provisions of cll 53-55 of the Regulation. Clause 53 prescribes lengths of vehicles (generally at a maximum of 19m) and cll 54 and 55 provide for permits and notices. The permits in the present case were not issued to the Defendant's vehicle under these provisions, the permits were issued under cl 15 and the Notice under cl 12. Therefore cll 53-55 do not apply in the present matter.
The permit issued under clause 15 is subject to the application clause - cl 11. Clause 11(3) specifically excludes the Division from application to a vehicle carrying a loaded or unloaded freight container designed for multi-modal transport. The Defendant's vehicle was carrying such a container and accordingly the permit issued under cl 15 did not apply to exempt the Defendant's vehicle from the load and dimension requirements of Schedule 1, nor did the dimension requirements in Schedule 2 apply. It is noted that cl 11(3) was in the same terms in the Regulation as at 1 July 2011, 1 July 2012, and July 2013. Clause 11(3) applied at the time of the issue of the permits to the Defendant's vehicle so that a vehicle carrying a freight container designed for multi-modal transport was excluded from the exemption permits issued pursuant to the Division 3 of Part 2 of the Regulation (cl 15 permits). As such the permits did not apply to exempt the Defendant's vehicle from the mass and load requirements of Schedule 1.
Findings - large indivisible item
Given the above findings, that the permit did not apply to exempt the Defendant's vehicle, I am not required to determine whether the shipping container was a large indivisible item to which the permit applied. However I make the observation that the forklifts inside the container are clearly divisible from the container, and if the rear door was to come open the forklifts can be removed - the container and its contents are thereby divisible. On this basis I would not be satisfied that the load of the container and its contents are a large indivisible item. In so finding I have considered the definition in the dictionary to the Regulation:
"large indivisible item" means an item that:
(a) cannot be divided without extreme effort, expense or risk of damage to it, and
(b) cannot be carried on any vehicle or combination without exceeding a mass or dimension limit in Schedule 1.
The item which was being carried by the Defendant's vehicle was clearly the container and its contents, and this was not a large indivisible item for the reasons given. I do not consider that the item can be considered to be the container alone, as the Defendant's vehicle was carrying a loaded container. To consider the load to be the container alone would be inconsistent with the definition of "load" in s 3 of the Act (and refer discussion at paragraphs 94 and 95 below). However even if this was to be argued, I consider that the unloaded container may also not be a large indivisible item as it has a back door that can be opened and so does not meet the definition of an item that "cannot be divided without extreme effort". Further, the definition requires that the item cannot be carried on a vehicle or combination without exceeding the dimension and/or mass requirements in Schedule 1, it is probable that an unloaded container would not exceed the mass requirements.
Discussion and findings - the Notice
Given the findings made in relation to the permits, I do not have to decide which Notice is the applicable Notice (refer below). However, for completeness, I will give my findings on this issue.
The Defendant tendered in evidence the General Class 1 Oversize (Load Carrying Vehicle) Notice 2007 published in New South Wales Government Gazette number 98 at pages 5509 - 5553. On page 4 of the Notice, at paragraphs 1.2 and 1.3, it states that the Notice takes effect on 1 August 2007 and remains in force until 31 July 2012 unless it is amended or repealed earlier.
At paragraph 1.5 of the Notice for definitions/construction of words in the Notice, it imports the terms defined in Part 8 of the Notice and the dictionary that forms part of the relevant Regulation.
The prosecution submitted (Exhibit 2) the Notice issued pursuant to clause 12 of the Regulation dated 27 July 2012, published in New South Wales Government Gazette number 78. The explanatory notes on page 1 of the Notice states:
"this notice replaces the General Class 1 Oversize (Load Carrying Vehicles) Notice 2007 that was published on 3 August 2007 in New South Wales Government Gazette number 98 at page is 5509 - 5553 and all amendments made to that Notice."
The 2012 Notice is stated to have effect on and from 1 August 2012, until 31 July 2017 unless repealed earlier.
The Notice applies to vehicles as stated in paragraph 2.1 - heavy vehicle or heavy combination specifically designed for the carriage of a large indivisible item, or is carrying a large indivisible item.
The Notice at paragraph 2.2 excludes certain vehicles - the Notice does not apply to a special purpose vehicle, agricultural machines, or a vehicle or combination that is carrying a loaded or empty freight container designed for multi-modal transport. The words and expressions used in the Notice have the same meaning as defined in the Act, unless otherwise stated.
The date of the alleged offences by the Defendant in the current matter, was 21 September 2012, which was after the date when the 2012 notice commenced (1 August 2012).
Part 2 of the 2007 Notice indicates the vehicles to which the notice applies as including a vehicle or combination (including a low loader or load platform combination) that is specifically designed for the carriage of a large indivisible item, or is carrying a large indivisible item.
The words specifically excluding, from the provisions of the Notice, vehicles carrying a loaded or empty freight container designed for multi-modal transport, are not contained in the 2007.
The prosecution maintains that it is clear that the relevant Notice is the 2012 Notice, and that a container for multi-modal transport is a load to which the permit does not apply. The Defendant submits that the 2007 Notice is the applicable notice for the permit, and that the 2007 Notice does not refer to a vehicle transporting a container designed for multi-modal transport.
Further, the Defendant submits that because the permits were issued on an annual basis, for a 12 month period, and were issued under the 2007 notice, given that the permits had not been revoked, had been issued for 12 months, and the Defendant was driving the vehicle pursuant to the permit within the 12 month period, then the permit applied to exempt the Defendant's vehicle.
The prosecution maintains that even if the 2007 Notice was the applicable notice, the shipping container is not a large indivisible item and therefore the permit and notice do not apply to the load that the Defendant's vehicle was carrying on the date of the alleged offences.
I find that the 2012 Notice is the applicable Notice as at September 2012 as it was the Notice in force on that date. This is clear from the words of the Notice (set out above) - the Notice is expressly stated to replace the 2007 Notice and all prior amendments. I further find that the 2012 Notice applies to the permits even though the permits were issued before that Notice came into effect. This is clear from the words of the permits - the permit does not stand alone - the conditions on the permits specifically refer to the "relevant Notice", and refers to the RTA website where the current Notice can be accessed. Reading the permits and Notice in the context of the Act and Regulation as a whole, and having regard to the clear words of the Notice and permits, it is clear that the applicable notice is the 2012 Notice.
Specific findings as to breaches of mass and dimension requirements
For reasons detailed above I find that the Defendant's vehicle was not exempted from the dimension and mass requirements of Schedule 1.
I find that the prosecution has proved on the evidence that the measurements of mass and dimension, of the Defendant's vehicle, are as stated by the prosecution witness Inspector Keys - there is no evidence which indicated otherwise, and the measurements were not contradicted by the defence. The measurements of the Defendant's vehicle as to dimension and mass are proved by the prosecution beyond reasonable doubt.
I find that the prosecution has proved on the evidence the breach of the dimension requirement - the dimension requirement was that the length of the vehicle could not exceed 19m. The length of the vehicle was measured at 21.05 metres, which exceeded the allowed length by 1.05m. The lower limit for a severe risk breach of a dimension requirement is 0.60 metres over the maximum permissible dimension limit (s 38(2), s 33(2)). Accordingly at 1.05m over it is a severe breach of the dimension requirement.
I find that the prosecution has proved the breach of the mass requirement-the mass on the quad axle group was measured at 32.15 tonnes, which exceeded the allowed mass by 12.15 tonnes, or 60.75%. The lower limit for a severe risk breach of a mass requirement is 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne (s 34(3), s 33(1)). As the mass exceeded the limit by 60.75% this is a severe risk breach.
Reasonable steps defence
In relation to the breach of the mass requirement the Defendant relies on the reasonable steps defence. Subsection 56(3) of the Act states that the reasonable steps defence is available for offences under s 56(1), if it is a breach of a mass requirement, and the breach is a substantial risk breach or a severe risk breach. I have found that the prosecution have proved that the mass on the quad axle group was a "severe risk" breach. Sections 87 and 89 of the Act provide:
Division 3 Reasonable steps defence
87 Reasonable steps defence for mass requirements: drivers, operators and owners
(cf Roads Act 1993, s 235)
(1) If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the "reasonable steps defence" for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the Defendant establishes that the Defendant:
(a) did not know, and could not reasonably be expected to have known, of the contravention, and
(b) had taken all reasonable steps to prevent the contravention.
(2) If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the Defendant took all reasonable steps to prevent the contravention unless it is satisfied that the Defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.
(3) The court is not entitled to be satisfied that the Defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:
(a) the load had been weighed, or
(b) the Defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.
(4) Subsections (2) and (3) do not apply if the Defendant satisfies the court that at all material times that the Defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned.
(5) If the Defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that:
(a) no director of the corporation, and
(b) no person having management functions in the corporation in relation to activities in connection with which the contravention occurred,
knew of the contravention or could reasonably be expected to have known of it.
...
89 Reasonable steps defence-reliance on container weight declaration
(cf model provisions, s 90)
(1) This section applies where the owner, operator or driver of a vehicle or combination is prosecuted for an offence involving a breach of a mass requirement and is seeking to establish the reasonable steps defence in relation to the offence.
(2) To the extent that the weight of a freight container together with its contents is relevant to the offence, the Defendant may rely on the weight stated in the relevant container weight declaration, unless it is established that the Defendant knew or ought reasonably to have known that:
(a) the stated weight was lower than the actual weight, or
(b) the distributed weight of the container and its contents, together with:
(i) the mass or location of any other load, or
(ii) the mass of the vehicle or combination or any part of it,
would cause one or more breaches of mass requirements.
In support of the reasonable steps defence the Defendant relies on the container weight declaration (CWD). The container weight declaration is for a weight of 21320.0 kg.
On or about 27 August 2012 the Defendant received from Speed Mark Australia Pty Ltd a "Sea Freight LCL Arrival Pre-Alert" and on about 31 August 2012, received a "Sea FCL Arrival Notice" in connection with the consignment of forklifts (by Qingdao Seize the Future Automobile Sales Co Ltd). The container weight declaration was given by Speed Mark Australia Pty Ltd: the Arrival Pre-Alert notice and the Arrival notice (Exhibit 3) contained the statement:
"this Cartage Advice complies with the requirements of a Container Weight Declaration(CWD) for this shipment, and is intended to, and acts as, as our CWD"
The Act has a number of provisions in relation to container weight declarations (refer ss 64-66) setting out a number of requirements, including as to a complying container weight declaration (see s 65). For the purposes of the current matter it is relevant to note s 64(1):
64 Container weight declarations
(cf model provisions, s 101)
(1) A "container weight declaration" for a freight container is a declaration that states or purports to state the weight of the freight container and its contents.
Accordingly the Act makes clear that a CWD states or purports to state the weight of the container and its contents. It does not provide a statement of the distribution of the load on the vehicle once the container is loaded onto the vehicle.
Section 89(2) of the Act makes clear that, to the extent that the weight of a freight container together with its contents is relevant to the offence, the Defendant may rely on the weight stated in the container weight declaration, in making out the defence. Whilst the weight of the container is relevant to the load on the Defendant's vehicle, does reliance on the declaration of the weight of the whole of the load (of the container) mean that the Defendant has taken reasonable steps in terms of the load on the quad axle?
The reasonable steps defence is made out if the Defendant establishes that the Defendant -
(a) did not know, and could not reasonably be expected to have known, of the contravention, and
(b) had taken all reasonable steps to prevent the contravention
The Defendant relies on the CWD as to the weight of the container in making this defence. As noted above, s 89(2) of the Act makes clear that to the extent that the weight of the container and its contents is relevant to the offence, the CWD can be relied upon.
The prosecution states that the decision of the Supreme Court of New South Wales: John Tilman v Daromin Engineering Pty Ltd (NSWSC, unreported, Dowd J, 6/11/2000) is relevant in assessing the defence. This case was an appeal from the determination of a Local Court Magistrate dismissing the information. The prosecution, in that case, alleged that a Defendant company did not comply with the conditions of the notice or permit under which the vehicle was operating. In the case there was no issue that there was overloading, of particular axles, where the permitted load on those axles was 18 tonnes and the weight actually recorded on each axle was 21.82 tonnes (making an overload on each axle of 3.82 tonnes). Section 235 of the Roads Act 1993 was the applicable legislation, and it provided a defence that a person could be acquitted if the person satisfied the court that the person 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. Section 235(4) provided that if the contravention resulted from the weight of the vehicle or part of the vehicle, together with the weight of any load, exceeding any limits prescribed, then the court was not entitled to be satisfied that the person in charge took all reasonable steps to prevent the contravention, unless the court was satisfied that the person took all reasonable steps to cause the weight of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred. (The current s 87 of the Act contains similar wording.)
The Defendant in the case had given evidence about having carried this kind of load before and referred to the fact that it was not possible to weigh the load before leaving the site and he did not do so. The load was a Caterpillar 631 scraper (that is, a large piece of machinery). The court found that the defence required the Defendant to satisfy the court that he did not know and could not reasonably have been expected to have known of the contravention, and that he had taken all reasonable steps to prevent the contravention. The court found that the legislation was directed at the load and weight over a particular axle and this was what was relevant, not the load over the whole of the vehicle. The court found that it may not be necessary to actually weigh the load if you had information so that you could make necessary calculations, however you must make the calculation. The court noted it would make an absurdity of the section if the section permitted a gross overloading of a particular axle in excess of a permit on that axle, if in fact it was simply necessary to weigh the total vehicle and its load, or calculate that total weight. The court found that the defence was not available because there had been no calculation concerning the weight over the particular axle.
The Defendant submitted that the case was not one which dealt with reliance by a Defendant, on a container weight declaration, and so was distinguishable on its facts and did not bind this court.
I consider that the case of John Tilman v Daromin Engineering Pty Ltd is authority for the proposition that the legislation intends to ensure there is no overloading of a particular axle, in excess of the permitted load on that axle, and the obligation to ensure that the axle is not overloaded is not removed by calculating the total weight of the vehicle and its load. As such the reliance on a container weight declaration, alone, may be insufficient to make out the reasonable steps defence, depending on the evidence in the particular case. A CWD could be relied upon as indicating the weight of the container and its load in making out the defence, however in respect of the offence in the current case, more is required - the Defendant needs to demonstrate steps were taken to ascertain the weight/mass on the particular axle.
In the present case there was no evidence given by the Defendant as to measurement of the load on any of the axles, the only evidence was the CWD, and the evidence of Inspector Keys that the driver told him he had weighed the vehicle with his onboard gauges (there is no evidence as to what weight or weights the driver recorded when so weighing, or what part of the vehicle the driver weighed). There is no evidence that any weighing to ascertain the weight/mass on the axles was undertaken. Nor is there any evidence that any method to calculate the mass on the axles, and in particular the quad axle, was used. There is no evidence that the Defendant took any action to ascertain the weight/mass on the quad axle. In the absence of any evidence that the Defendant took any measurements or made any calculation as to the load on the quad axle, reliance on the CWD alone is not sufficient, as the CWD only provides a representation of the weight of the container and its contents, as a whole.
For the above reasons I am not satisfied that the Defendant has established the reasonable steps defence in respect of the severe risk breach of the mass requirement.
Discussion and findings - Load restraint breach
Provision is made for load restraint requirements in s 20 of the Act and cl 61 the Regulation:
[s20 Act] "load restraint requirement" means a requirement of an Australian applicable road law that relates to the restraint or positioning of a load or any part of a load on a vehicle or combination.
[cl.61 Regulation] 61 Load requirements
(1) A load on a vehicle or a trailer must not be placed in a way that makes the vehicle unstable or unsafe.
(2) A load on a vehicle or a trailer must be secured so that it is unlikely to fall or be dislodged from the vehicle.
(3) An appropriate method must be used to restrain the load on a vehicle.
(4) In proceedings for a contravention of a requirement under this clause, it is sufficient for the prosecution to prove that the load on the vehicle was not placed, secured or restrained (as the case requires) in a way that met the performance standards recommended in the Load Restraint Guide: Guidelines and performance standards for the safe carriage of loads on road vehicles, Second Edition , as published by the National Transport Commission in April 2004.
Note. Copies of the Load Restraint Guide: Guidelines and performance standards for the safe carriage of loads on road vehicles, Second Edition , are available from the RTA offices.
(5) In proceedings for a failure to comply with this clause, a document purporting to be the Load Restraint Guide referred to subclause (4) is taken to be the Load Restraint Guide, unless the document is proved by the Defendant not to be the Load Restraint Guide.
(6) If the prosecution in proceedings for a contravention of a requirement under subclause (2) proves that the load, or part of the load, had fallen off the vehicle, the burden of proof is on the Defendant to show compliance.
In this matter the prosecution is alleging a breach of the cl 61(3) - that the method of load restraint was not appropriate.
Clause 61(4) of the Regulation provides, in any prosecution for load restraint breaches, that it is sufficient for the prosecution to prove such a breach by proving that the load was not placed, secured or restrained in a way that met the standards recommended in the Load Restraint Guide: Guidelines and performance standards for the safe carriage of loads on road vehicles, Second Edition, as published by the National Transport Commission in April 2004 ("the Guide").
In the current matter no such evidence was led by the prosecution. Under cross-examination Inspector Keys stated he usually had the Guide in his vehicle and he could not recall if he referred to the Guide at the time he inspected the Defendant's vehicle or prepared his breach report. In his written affidavit and oral evidence, Inspector Keys provided no evidence of how the load restraint did not comply with the standards in the Guide.
Inspector Keys did give other evidence about the load restraint breach. He gave evidence of his opinion that the load restraint method was inappropriate and his reasons for this opinion, and his experience or expertise upon which the opinion was based.
"Load" is defined in s 3, the definitions section of the Act:
"load" of a vehicle or combination, or in or on a vehicle or combination, means:
(a) all the goods, passengers and drivers in or on the vehicle or combination, and
(b) all fuel, water, lubricants and readily removable equipment carried in or on the vehicle or combination and required for its normal operation, and
(c) personal items used by a driver of the vehicle or combination, and
(d) anything that is normally removed from the vehicle or combination when not in use,
and includes a part of a load as so defined.
It is clear that load is very widely defined. The load in the current matter would include the container and its contents, according to the definition of in s 3 of the Act. The evidence indicated that the container itself was secure, it had not shifted, and the container was appropriately secured to the vehicle by twist locks, an accepted method of restraint.
The evidence is that the load inside the container had shifted and this was apparent when the rear doors of the container were opened by Inspector Keys. The load had shifted and at least one forklift was damaged and tie wires broken. The load inside the container would satisfy the definition of "load": this includes all goods and part of a load.
The Act further provides for considerations in determining whether a breach involves risk, and in determining whether the loss or shifting of a load is imminent (ss 24, 25):
24 Determining whether a breach "involves" risk
(cf model provisions, s 65)
For the purposes of this Act, in determining whether or not a breach of a mass, dimension or load restraint requirement "involves" an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity, regard is to be had to:
(a) the nature and severity of the breach, and
(b) the consequences or likely consequences of the breach, and
(c) any other relevant factors.
25 Meaning of "imminent" loss or shifting of load
(cf model provisions, s 66)
(1) For the purposes of this Chapter, the loss or shifting of the load of a vehicle or combination is "imminent" if it is assessed by the officer or court concerned to be likely to occur during the journey being or about to be undertaken by which the load is being or is to be transported, having regard to:
(a) the nature and condition of the vehicle or combination, and
(b) the nature, condition, placement and securing of the load, and
(c) the length of the journey, and
(d) the nature and condition of the route of the journey, and
(e) any other relevant factors.
(2) For the purposes of this Act, the disembarkation of persons from, or the movement of persons on, a vehicle or combination does not constitute a loss or shifting of the load of the vehicle or combination.
31 Load restraint requirement
...
(3)A breach of a load restraint requirement is a minor risk breach if the loss or shifting of the load concerned:
(a) has not occurred and is not imminent, and
(b) is assessed by the officer or court concerned not to involve (if it were to occur) an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity.
32 Substantial risk breaches
...
(3) Load restraint requirement
A breach of a load restraint requirement is a substantial risk breach if:
(a) the loss or shifting of the load concerned:
(i) has already occurred or is imminent, and
(ii) is assessed by the officer or court concerned not to involve an appreciable risk of harm to public safety, the environment or road infrastructure, or
(b) the loss or shifting of the load concerned:
(i) has not occurred and is not imminent, and
(ii) is assessed by the officer or court concerned to involve an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity.
33 Severe risk breaches
...
(3) Load restraint requirement
A breach of a load restraint requirement is a severe risk breach if the loss or shifting of the load concerned:
(a) has already occurred or is imminent, and
(b) is assessed by the officer or court concerned to involve an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity.
In considering these legislative provisions and the evidence in this matter I find as follows. The prosecution must establish, firstly, a breach of a load restraint requirement. Inspector Keys gave evidence of his observations upon inspection, as detailed above, that the load was not adequately restrained given it had shifted and some of the load was damaged and tie-wires broken. He gave evidence of his opinion that the restraint method was not appropriate and the basis for that opinion. No evidence was presented by the Defendant, to refute the observations of Inspector Keys, upon which he based his opinion that the load restraint was inadequate. The defence did adduce evidence that the container was secure.
In addition to proving a breach of the load restraint requirement, the prosecution must also prove risk.
I find, on the evidence, that the load inside the container had shifted, and that damage had been caused to part of the load, and some tie-wires used to restrain the load inside the container had broken, and this indicated that the method of restraint was inadequate- Inspector Keys gave evidence of his experience in assessing loads and his professional opinion as to the tie-wires being inadequate restraint.
As I am satisfied that the evidence establishes that the load restraint method was not appropriate I am satisfied that the breach of the load restraint requirement is proved by the prosecution (cl 61(3)). I am also satisfied on the evidence that the load within the container shifted, and given the wide definition of "load" includes not just the container but the load inside the container, then the evidence is that the load shifted.
The prosecution must prove the category of the breach. Whilst the load did shift within the container there was no other evidence presented by the prosecution as to the nature and severity of the breach e.g. likelihood of the container doors coming open thereby risking loss of load, exposure of public to harm. Inspector Keys assessed the breach as a severe risk breach.
Section 32 provides that a breach is a severe risk breach if the loss or shifting of the load has already occurred or is imminent, and is assessed by the court to involve an appreciable risk of harm to public safety, the environment, road infrastructure or public amenity. Section 32(a)(ii) provides that it is a substantial risk breach if the loss or shifting has occurred or is imminent, and it is assessed by the court to not to involve an appreciable risk of harm to public safety, the environment or road infrastructure.
The issue for determination therefore, is whether the court is satisfied on the evidence, given the finding of fact that load had shifted, that there was an appreciable risk to public safety. In making this assessment s 24 of the Act requires that regard be had to the nature and severity of the breach, and the consequences or likely consequences of the breach, and any other relevant factors.
Not much evidence was adduced by the prosecution or the defence on this issue. The evidence indicates that the container was secured and there is no evidence of risk to public safety from the method of restraint of the container, it was an accepted method and the container was secure. The load inside the container had shifted and this was discerned when the container doors were opened by the inspector. No load spilled when the doors were opened. The Inspector did not enter the container to inspect the load and photographs were taken from the rear door of the container. The photographs as well as showing a broken tie-wire do show other intact restraints including ropes. There is not clear evidence that the restraints throughout the container were not restraining the load or that more than minor shifting was likely. There is little evidence as to the likely consequences of the breach.
There is no evidence that the container doors were insecure. There is no evidence presented as to the likely consequence of the breach beyond a consequence of damage to the contents inside the container. There is no evidence presented that a likely consequence is that the load will spill out of the container or cause the container to tip, which would be an appreciable risk to public safety, and of significant concern. In the absence of more evidence I am not satisfied of the appreciable risk to public safety, the environment or road infrastructure.
However, I am satisfied of the shifting of the load, as already stated, and so find the risk is a substantial risk breach rather than a severe risk breach.
Pursuant to s 61 of the Act, as I am not satisfied that a severe risk breach is established but I am satisfied of a substantial risk breach, I find that a substantial risk breach of the load restraint requirement is proved on the evidence. The court assessed, on the evidence, that the breach was a substantial risk breach for the reasons given.
Conclusions
For reasons detailed above I conclude as follows.
The mass on the quad axle group was measured at 32.15 tonnes, which exceeded the allowed mass by 12.15 tonnes, or 60.75%, and was a "severe risk" breach. I find the offence proved.
The dimension requirement was that the length of the vehicle could not exceed 19m. The length of the vehicle was measured at 21.05 metres, which exceeded the allowed length by 1.05m, and was a "severe risk" breach. I find the offence proved.
The load restraint requirement was that an appropriate method must be used to restrain the load on a vehicle, and the court has found that the method of load restraint was inappropriate, and the breach is assessed as a substantial risk breach, and the offence is proved.
Having found the offences proved as detailed, the court will hear submissions as to the appropriate penalty.
Huntsman LCM
Downing Centre Local Court
10 October 2013
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Decision last updated: 06 March 2014
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