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Western Freight challenges ‘reasonable steps’ obligations

Company loses appeal against overloading breach in a case that challenged the fairness of 'reasonable steps' obligations on trucking operators

Brad Gardner | September 3, 2013

Western Freight Management has failed in its appeal against an overloading breach in a case that challenged the fairness of ‘reasonable steps’ obligations on trucking operators.

New South Wales Supreme Court Justice David Davies upheld a Local Court ruling that found Western Freight Management did not take reasonable steps to prevent one of its trucks from being overloaded.

The transport operator argued it was denied procedural fairness because the Roads and Maritime Services (RMS), which prosecuted the company, did not specify the steps that should have been taken to avoid the breach.

Accusing the RMS of ambushing it, Western Freight Management claimed it should have been told of the steps before the case was heard to allow it to decide whether to argue if they were unreasonable.

But Davies dismissed the argument, saying the legislation governing reasonable steps does not require the prosecution to specify what a trucking company should do to prevent overloading.

“On that basis there can be no obligation on the prosecution to identify all the reasonable steps that ought to have been taken,” he says.

Under transport law, the onus is on trucking operators to show they took all reasonable steps or that there were no steps they could have been expected to have taken to prevent a breach from happening.

“Once the evidence of the steps taken is adduced the prosecution is at liberty to challenge those steps by leading evidence to suggest that those steps were inadequate and, to emphasise the argument, to point to other matters that could have been done,” Davies says.

Western Freight Management made the same argument when the Local Court heard the case, but the magistrate ruled it would be almost impossible for the RMS to provide a list of reasonable steps given the number that could be involved.

It fined the trucking operator $3,000, along with $3,000 in professional costs and $83 in court fees. Davies upheld the fine and ordered Western Freight Management to pay the RMS’s court costs.

The RMS issued an $853 penalty notice to Western Freight Management in March 2012 when it discovered one of the axles on the truck was overloaded.

The truck was loaded at one of manufacturing firm Minova’s sites. Its forklift driver was told how to load the truck correctly, but he failed to do so.

Western Freight Management’s truck driver did not check the freight before leaving because he assumed it had been loaded according to instructions.

During the case the RMS highlighted the driver’s inability to check the load before departing as a reasonable step that should have been taken.

Western Freight Management labelled the RMS’s actions unfair because the company was not told in advance the government department would list this as a reasonable step.

But Davies was not convinced.

“What the evidence shows is that the driver had a number of opportunities to ascertain that the pallets had not been loaded as he had instructed but that he did not bother checking that it had been done that way – rather, he just assumed that the forklift driver had done what he had been told,” he says.

“It is scarcely surprising that the prosecution submitted, and the magistrate accepted, that in failing to ensure that the forklift driver had properly followed instructions reasonable steps could not have been taken. It is difficult to see how there was any unfairness in this.”

“I do not consider that there was any obligation on the prosecution to specify what steps ought to have been taken by the plaintiff [Western Freight Management].”

The case was the latest in a number of legal wrangles involving the RMS and Western Freight Management.

Earlier this year, the RMS lost an appeal against a court ruling that found Western Freight Management took reasonable steps to avoid an overloading breach while hauling a device used in a rock crushing machine.

In that incident, the front of the truck’s axle exceeded weight restrictions by 27 percent. Specialised Welding Products loaded it incorrectly, but Western Freight Management’s truck driver took off after he could not find someone to reload it correctly.

The company successfully argued it should not have been held liable because it provided its driver with instructions on how the device should have been loaded.

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