Court upholds ruling in favour of Western Freight Management, which relied on reasonable steps defence to beat overloading charge
By Brad Gardner | April 5, 2013
The New South Wales road authority’s pursuit of Western Freight Management for an overloading offence has fallen over, with the Supreme Court ruling the company took reasonable steps to avoid the breach.
Associate Justice Joanne Harrison dismissed a Roads and Maritime Services (RMS) appeal against a 2012 Local Court ruling that Western Freight Management was not liable for the front axle of its truck exceeding the weight limit by 27 percent.
A Western Freight driver was carrying a 4.75 tonne mantle – a part used in a rock crushing machine – from Specialised Welding Products’ (SWP) premises to Western Freight’s depot when RMS inspectors pulled him over and discovered the loading offence.
Western Freight had provided the driver with instructions on how the item should be loaded before he left to collect it. SWP loaded it incorrectly, causing the axle to exceed mass dimensions.
The driver took off from SWP’s Beresfield site after he could not find someone to reload the mantle correctly.
Western Freight argued it took reasonable steps to prevent a breach by issuing instructions and that it should not be held liable because the driver acted against the company’s directions. It says there would not have been a breach if the mantle was loaded correctly.
“I accept, as did the [Local Court] magistrate, that the elements of the reasonable steps defence…have been made out,” Harrison says.
“The result is that the Roads and Maritime Services appeal is dismissed.”
When relying on a reasonable steps defence against an overloading offence, transport operators must demonstrate they established the mass of the load either by weighing it or ensuring the truck driver had information to calculate the weight of the load.
Harrison says the driver was given a manifest stating the weight of the mantle, and a consignment note from SWP detailing the weight was also handed to him.
“I am satisfied that Mr Nathan [the driver] was in possession, when he commenced his return journey, of sufficient or reasonable evidence from which to calculate the weight of his cargo,” she says.
“Western Freight says its employee did not allow the load to be misplaced by the loader. It was loaded against his instructions…However he then, despite the clear requirements of his employer as to the loading, exceeded the scope of his employment by acting against the interests of the employer.”
The RMS argued that the truck driver’s decision did not amount to him acting beyond the scope of his employment.
“According to the Roads and Maritime Services, the carriage of the load was the task performed by Mr Nathan for Western Freight and it was at all relevant times the very purpose of his employment,” Harrison says.
