A combination of load-restraint methods has strength in law as well
I was recently involved in a case where a heavy vehicle operator was charged with a breach of the Heavy Vehicle National Law (HVNL) with respect to restraint issues.
On October 20, 2016, a curtain-sided B-double combination was intercepted by New South Wales police on the Newell Highway near Tichborne. Of particular interest to the police was the message of flash load restraint used by the transport operator.
After inspecting the load, the police formed the view that the transport operator had breached section 183 (2) (G) of the HVNL.
In other words, the operator was fined for an alleged load-restraint breach. It should be also noted that the category of breach was a “substantial breach” and consequently carried with it significant fines.
The alleged breach
In essence, the allegation made by the police was that the load (which was a combination of wrapped and palletised items) had not been restrained in accordance with the Tenacitex Curtain System (TCS) which system was affixed to the curtain. It is also important to note that the transport operator had placed “strapped gate” on the inside of the raised curtain but the gates had been fixed in reverse.
There is no doubt that the method of restraining the load did not comply with the TCS, however it did not follow that the transport operator was in breach of the law.
The reason for this is that the police, in laying the charges, simply relied on the non-compliance with the TCS and failed to consider the “mathematical” impact the gates would have (notwithstanding the gates were fitted incorrectly, presumably to gain greater width on the trailer) on the restraining of the load.
To properly understand whether a restraint breach has occurred, the police should have taken into account the impact the gates had on the method of restraint, and had regard to Section F – Performance Standards of the Load Restraint Guide (2004).
As the transport operator had used the “curtain” and “gates” to restrain the load, reliance on the TCS was irrelevant. Even with the gates being fitted incorrectly, the gates still had a “mathematical” rating.
Successful points
Given the above, I had argued that the charges were misconceived for the following reasons.
Firstly, the charges contemplated an offence that did not exist at law. Failure to comply with the TCS did not found aa breach of HVNL, nor does the alleged incorrect fitting of the “gates”. There is nothing in the HVNL that would require such compliance.
Compliance, rather, is to be determined on a case-by-case basis having regard to the Load Restraint Guide – Section F – Performance Standards by virtue of s115 of the HVNL. Reliance of the TCS would only be relevant when a vehicle is loaded using nothing more than TCS. When a vehicle is loaded using a “combination” of load-restraint methods, the TCS is simply misconceived.
Secondly, and for similar reasons as expressed above, reliance on the “correct” use of “gates” in circumstances where a “combination” of load-restraint methods are used is equally misconceived.
Thirdly, the movement of the load of itself, again, does not give rise to an offence recognised at law.
Fourthly, the evidence produced by the prosecution, (including expert evidence) fell far short of the required standard being beyond reasonable doubt. The prosecution must show, to the required standard of proof, the transport operator had failed to comply, by virtue of s115, with the Standard.
Ultimately, the transport operator was successful and the charges were dismissed.
*Maurice Baroni is a barrister at Denman Chambers