An infringement caused by someone else driving your truck could be directed back to you
Many operators I work with share their vehicle with other people. Sometimes, this is a formal leasing arrangement. Other times, it’s just helping out a mate.
But did you know that you could be held responsible for offences that happen while the truck is out of your control?
The Supreme Court of NSW recently heard a case that demonstrates how strict this law is and how important it is for owners to understand the procedure for nominating the person who is actually responsible for the offence.
Company charged for someone else’s offence
In 2018 a NSW company, Chalouhi Enterprises Pty Ltd, leased its truck to another business. That business drove it while overloaded. Roads and Maritime Services (RMS) charged Chalouhi Enterprises for the offence. Understandably, it pleaded “not guilty” since they were not involved in the overloading.
It seems like an obvious case – the owner shouldn’t be fined when they can prove the vehicle wasn’t under its control. However, the legal position isn’t that straight forward.
How Chalouhi lost its mass breach appeal bid, here
The legal requirement to nominate the actual offender
The Heavy Vehicle National Law (HVNL) has a number of offences that can be committed by the “operator” of a vehicle, i.e. the person who is actually responsible for directing and controlling the vehicle’s use.
However, it’s not always possible for the authorities to know who had actual control over the vehicle at any given time.
To solve this problem, the law assumes that the person who’s name the truck is registered in is the actual operator.
That person is responsible for the offence unless they provide a statutory declaration nominating the actual operator.
This is the point at which it becomes very important for owners to understand the legal requirements. The timeline for nominating is very strict, with no scope for an extension.
Time limits to nominate
The time limit to nominate depends on whether you receive a ticket or have to go to court:
- if you receive an Infringement Notice – within 14 days of the infringement being issued
- if you receive a Court Attendance Notice:
(i) If the charge is to be heard 28 days or less after you become aware of it – as soon as practicable
(ii) If the charge is to be heard more than 28 days after you become aware of it – as soon as practicable, but at least 28 days before the charge is heard.
If you don’t nominate in time then you can be held legally responsible for the offence even if you can prove that you had absolutely no involvement in it.
This is what happened to Chalouhi Enterprises. It didn’t submit its nomination as soon as practicable, and so was treated as the actual operators.
How can you protect yourself?
There are two main things you can do to ensure you’re not liable for other people’s offending:
1. Act quickly: The main lesson from Chalouhi’s case is that you should submit your nomination as soon as you receive your ticket or court attendance notice. Even waiting a few weeks could mean you are too late.
2. Keep a record of who has your truck: Often the ticket or court attendance notice arrives many months after an offence has occurred. Without a written record of who had the truck at each moment, it can be difficult to identify who was responsible at the time. We recommend that owners keep a log or similar record recording the name of the person bowing the truck, when it was taken and when it was returned.
3. Keep evidence of the conditions under which the truck was loaned: Simply submitting the nomination isn’t always enough to stop the case against you. The court will still need to be satisfied that the nomination is truthful and you really didn’t have control over the vehicle.
It is a good idea to write down the agreement whenever you loan your vehicle. Having a contract or document setting out the extent that you each have control over the vehicle could be the difference between being found guilty or not.
Taking these simple steps could be the difference between copping a fine or not.
Sarah Marinovic is principal at Ainsley Law.