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Boral firm slammed in court for COR wilful blindness

Load properly or face compliance consequences, NHVR warns


The National Heavy Vehicle Regulator (NHVR) has prosecuted successfully a national company for overloading a gravel truck 120 per cent above the statutory limit.

Both the loader manager and the truck driver were casual employees and the outcome, in the South Australian Magistrates Court, is seen as a Chain of Responsibility (COR) win.

Magistrate Mark Semmens is scathing in his findings against Boral company Bitumax, which trades as Boral Asphalt, for a mass offence under the pre-October 1 Heavy Vehicle National Law and he fined it $9,900. The maximum penalty for this type of offence is a fine of $55,000.

“In no way could this offending by the company be considered trifling or a technical breach,” Semmens finds.

“This is a case of wilful blindness and ‘hopefulness’ that was improper and falls far short of good corporate governance.

“It is a far more serious example of a typical offence, because there was absolutely no effort of compliance on the day of the offence by any person in the chain of responsibility.”

He returns to the point in recording a conviction.

“I do not think this is a ‘basic’ case. It is an extraordinary case and what is extraordinary is the complete lack of any structure by a corporate body to ensure that a chain of reporting exists to ensure compliance with the legal and safety obligations cast upon it,” he writes.

Read the NHVR’s COR warning on heavy vehicle supply chain companies, here

The magistrate’s ruling notes that three requests had been submitted for the loader to have scales, over a five month period to March 2018, without result.

“Therefore, the loading and transport of the materials involved pure guess work and speculation,” the finding reads.

“This was a case of complete indifference by the company and its operators as to their legal obligations.

“The fact that there was nothing in place to check the mass of the load is entirely unacceptable.”

While a lack of evidence on the weight of trucks on other trips meant they could not be used as the basis of an “aggravated feature of the case”, Semmens emphasised that “the lack of any weighing system in place is surprising, improper and serious enough in itself”.

He rejects explanations including that the trucks usually used, which had on-board scales, were not available and that there was reliance upon the manufacturers’ load limits for the truck.  

“It is the company’s obligation to ensure that there was compliance with the heavy vehicle laws, no matter what vehicle is used or who owns it,” he states, adding, “I say that as a matter of law, the manufacturers’ load limits do not apply and no prudent operator or driver of a heavy vehicle would ever rely upon them.”

A 40 per cent discount was applied on the penalty due to a guilty plea and there was “significant” evidence of remorse in corrective action taken.

This included:

  • a review of its procedures
  • further training of their employees
  • ensuring a system of follow-ups rather than relying upon one system to ensure compliance
  • training, education, worksite meetings, internal audits and other administrative steps
  • back up procedure in place to make the company systems fail safe
  • scales for its loaders and all its trucks
  • contingency for back up vehicles which are similarly fitted with scales.

Commenting on the case, NHVR executive director statutory compliance Ray Hassall says that the decision reinforced the importance of due diligence for all parties along the heavy vehicle supply chain.

“This is an important outcome for the heavy vehicle safety because it goes to the heart of issues around good governance and accountability within the chain of responsibility,” Hassall says.

“Companies have a responsibility to ensure good loading practices, from the top down.

“Those at the top of the chain have the most power to implement good safety practices and they need to take that responsibility seriously.”


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