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Heavy Vehicle Loading Requirements

Updated: Nov 3, 2023



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Published by Geoff Harrison | 6 September 2023


A person who drives, or permits another person to drive a heavy vehicle on a road, must ensure the load complies with the vehicle's loading requirements. The maximum penalty applicable depends upon whether the breach is a minor, substantial or severe risk breach ie. $3000, $5000 or $10,000. The applicable statutory defence is whether the person has a reasonable excuse.


The defence of reasonable excuse was considered in the case of National Heavy Vehicle Regulator v Giannopoulos Pty Ltd [2023] SASC 101 by Justice McIntyre. In considering whether the company had established a reasonable excuse to a charge of permitting a driver, to drive a heavy vehicle without the vehicle's load complying with the loading requirements, the company must establish:

  • There was appropriate training and policies.

  • The driver had undertaken the appropriate training and instruction.

  • The company had a reasonable expectation that the driver would identify a problem with the load and contact the company.

Sources:

Cases:


HEAVY VEHICLE NATIONAL LAW (NSW) - SECT 111

Compliance with loading requirements


(1) A person who drives, or permits another person to drive, a heavy vehicle on a road must ensure the vehicle, and the vehicle's components and load, comply with the loading requirements applying to the vehicle, unless the person has a reasonable excuse.

Maximum penalty--

(a) for a minor risk breach--$3000; or

(b) for a substantial risk breach--$5000; or

(c) for a severe risk breach--$10000.


HEAVY VEHICLE NATIONAL LAW (NSW) - SECT 112

Minor risk breach


A contravention of a loading requirement applying to a heavy vehicle is a minor risk breach if--


(a) the subject matter of the contravention does not involve a loss or shifting of the load; and

(b) had the subject matter of the contravention involved a loss or shifting of the load, the loss or shifting of the load would not have been likely to have involved--

(i) an appreciable safety risk; or

(ii) an appreciable risk of--

(A) damage to road infrastructure; or

(B) causing an adverse effect on public amenity.


HEAVY VEHICLE NATIONAL LAW (NSW) - SECT 113

Substantial risk breach



(1) A contravention of a loading requirement applying to a heavy vehicle is a substantial risk breach if the subject matter of the contravention involves a loss or shifting of the load that does not involve--

(a) an appreciable safety risk; or

(b) an appreciable risk of--

(i) damage to road infrastructure; or

(ii) causing an adverse effect on public amenity.


(2) A contravention of a loading requirement applying to a heavy vehicle is also a substantial risk breach if--

(a) the subject matter of the contravention does not involve a loss or shifting of the load; and

(b) had the subject matter of the contravention involved a loss or shifting of the load, the loss or shifting of the load would have been likely to have involved--

(i) an appreciable safety risk; or

(ii) an appreciable risk of--

(A) damage to road infrastructure; or

(B) causing an adverse effect on public amenity.


HEAVY VEHICLE NATIONAL LAW (NSW) - SECT 114

Severe risk breach


A contravention of a loading requirement applying to a heavy vehicle is a severe risk breach if the subject matter of the contravention involves a loss or shifting of the vehicle's load that involves--


(a) an appreciable safety risk; or

(b) an appreciable risk of--

(i) damage to road infrastructure; or

(ii) causing an adverse effect on public amenity.


HEAVY VEHICLE NATIONAL LAW (NSW) - SECT 115

Proof of contravention of loading requirement



(1) In a proceeding for an offence against Division 1, the following is evidence that a load on a heavy vehicle was not placed, secured or restrained in compliance with a loading requirement applying to the vehicle--

(a) evidence that the load was not placed, secured or restrained in a way that met a loading performance standard;

(b) evidence that a load, or part of a load, has fallen off a heavy vehicle.


(2) The national regulations may prescribe standards (the

"loading performance standards" ) for heavy vehicles.


HEAVY VEHICLE (MASS, DIMENSION AND LOADING) NATIONAL REGULATION (NSW) - REG 38

Loading requirements


(1) The loading requirements applying to a heavy vehicle are stated in section 1 of Schedule 7.


(2) The loading performance standards for heavy vehicles for the purposes of section 115 of the Law are stated in section 2 of Schedule 7.



___________________________________________________________________________



NATIONAL HEAVY VEHICLE REGULATOR v GIANNOPOULOS PTY LTD [2023] SASC 101 (18 July 2023)


SUPREME COURT OF SOUTH AUSTRALIA


(Magistrates Appeal: Criminal)


DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.


NATIONAL HEAVY VEHICLE REGULATOR v GIANNOPOULOS PTY LTD


[2023] SASC 101


Judgment of the Honourable Justice McIntyre


18 July 2023


APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE


APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - WHEN NEW TRIAL GRANTED


APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE


National Heavy Vehicle Regulator appeals from a decision of the Magistrates Court of South Australia.


National Heavy Vehicle Regulator charged Giannopoulos Transport under s 111 (1)(c) of the Heavy Vehicle National (South Australia) Law 2013 alleging that on 26 September 2019, Giannopoulos Transport without reasonable excuse, permitted Mr Thomas McDonald to drive a prime mover towing a trailer in a single semi-trailer combination without ensuring that the all loading requirements were complied with. Following a trial, all elements of the charged offence were found proven, but Giannopoulos Transport was found not guilty on the basis that the Magistrate was satisfied that it had a reasonable excuse for failing to ensure that the load complied with the loading requirements applicable to the vehicle and the load.


Held:


1. The appeal is allowed


2. Matter remitted to the Magistrates Court for rehearing.


Heavy Vehicle National Law (South Australia) Act 2013 (SA), referred to.


GHS Safety Products Australia Pty Ltd (No 2) [2019] NSWSC 723; McGorm v Bennett and Bennett (Unreported SASC, 22 May 1981); Plenty v Dillon [1991] 171 CLR 635; Police v Korber [2003] SASC 69; [2003] 85 SASR 472; Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS; Pol v City of Port Adelaide Enfield [2017] SASC 116; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Fox v Percy (2003) 214 CLR 118; Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454; Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231; Gelzinis v T & R (Murray Bridge) Pty Ltd [2009] SASC 61; (2009) 103 SASR 194; Healy v Commissioner of Taxation [2006] NSWSC 853; (2006) 202 FLR 316; House v The King (1936) 55 CLR 499, considered.


NATIONAL HEAVY VEHICLE REGULATOR v GIANNOPOULOS PTY LTD


[2023] SASC 101


McIntyre J:


Introduction


1. By Information dated 22 April 2021 the appellant, National Heavy Vehicle Regulator, charged the respondent with a single offence under s 111(1)(c) of the Heavy Vehicle National (South Australia) Law 2013 (HVNL). The charge alleged that, on 26 September 2019 at Para Hills, the respondent, without reasonable excuse, permitted Mr Thomas McDonald to drive a heavy vehicle consisting of a prime mover towing a trailer in a single semi-trailer combination on a road without ensuring that the vehicle, the vehicle’s components, and loads complied with the loading requirements applicable to the vehicle.


2. The respondent was found not guilty following a trial. The Regulator appeals on a single ground, specifically that the Magistrate erred in finding that the respondent had a reasonable excuse for failing to ensure that the load driven by its employee, McDonald, complied with the loading requirement applicable to the vehicle and load.


3. For the reasons that follow I allow the appeal. I order that the acquittal be quashed, and the matter be remitted to the Magistrates Court for re-hearing.


Preliminary Issues


4. The appellant sought an extension of time to bring the appeal and the respondent sought an extension of time to file a notice of alternative contentions under r 185.1 of the Joint Criminal Rules 2022. Those applications were not opposed, and both extensions were granted on the day of the hearing of the appeal.


5. The respondent’s notice of alternative contention asserts that the Information dated 22 April 2021 was defective as it named a defendant who is not a person for the purposes of s 111 of the HVNL. As at the date of trial on 21 June 2022, the limitation of time had expired, and it is said that the Information was not capable of amendment. It is contended that the Information should therefore have been dismissed by the Magistrate.


6. The basis for the respondent’s submission is that the charge names the defendant as “Giannopoulos Transport Pty Ltd (ACN 075834187)”, whereas the registration certificate for the subject vehicle correctly states the name as “D and H Giannopoulos Pty Ltd (ACN 075834187).” The appellant concedes the accuracy of the certificate of registration but disputes the respondent’s contention that this is an error as to identity that of itself should have compelled the dismissal of the case.


7. This issue was not raised before the Magistrate. The respondent accepted service of the Information, engaged and instructed lawyers to appear on its behalf, cross examined witnesses and called evidence at the Magistrates Court hearing. At no stage was it contended that the respondent was other than the legal entity that employed Mr McDonald and as such subject to the duty imposed by s 111 of the HVNL.


8. The Information and Summons was issued under ss 49, 57 and 57A of the Criminal Procedure Act (SA) 1921. It is well established that the effect of a summons to appear before a court of summary jurisdiction to answer an information or complaint does not itself compel a defendant to appear. Its primary purpose is to ensure that natural justice is accorded to a defendant by giving the defendant notice of the subject of the complaint and an opportunity to be heard.[1] The respondent appeared in answer to the Information and Summons. If a defendant attends at court in answer to a summons, the Court has jurisdiction to deal with the matter unless the complaint was invalid.[2]


9. Under r 63.1 of the Joint Criminal Rules 2022, the appellant could amend the information prior to the date of the trial without leave, if the amendment would not increase the length of the trial or affect the trial proceeding on the trial date. In the circumstances it is likely that these pre-conditions would have been met. Further, if the issue had been brought to the attention of the presiding Magistrate, the court could, in my view, correct the error notwithstanding the limitation of time. The Australian Company Number (ACN) on the Information is correct. It is a unique ACN for the respondent’s entity. It is not applicable to any other entity. There was no confusion about the respondent’s identity at any stage of proceedings. It is therefore possible to correct that misdescription at any time,[3] as such a correction would not change the meaning or substance of the Information, or work any injustice on either party[4].


10. It is my view that, given the use of the correct ACN, the respondent was properly identified in the Magistrates Court Information notwithstanding the mis-description in the name of the company. The Information was a valid complaint. That valid complaint was the foundation for the Magistrate to proceed.


11. I reject the alternative contention that the Information should have been dismissed.


Background


12. The charge arises out of an incident on Main North Road at Para Hills West on 26 September 2019. Mr Thomas McDonald was an employee of the respondent. He picked up car bodies from Paradise Motors in order to transport them to a scrap metal depot at Gillman. As Mr McDonald was driving south on Main North Road, the car in front of him stopped suddenly causing him to brake. A car body flipped out of the top of his trailer and landed between the cabin and the trailer.


13. The Information alleged that the respondent permitted Mr McDonald to drive a heavy vehicle consisting of a prime mover and a single semi-trailer combination on Main North Road without ensuring that the vehicle, the vehicle’s components, and load complied with the loading requirements. Further particulars of the charge were included in the Information as follows:

1. The trailer of the heavy vehicle comprised a tub with four sides with an open top;

2. The load contained within the trailer tub comprised four scrap metal motor vehicle bodies;

3. The load was not restrained or secured;

4. In the course of the heavy vehicle being driven, one of the scrap metal motor vehicle bodies became dislodged and moved from the trailer tub over the front top lip of the trailer tub and fell, becoming lodged between the prime mover cabin and the trailer tub;

5. This is a severe risk breach within the meaning of s 114 of the HVNL.


14. The elements of the charged offence were as follows:

1. That the vehicle is a heavy vehicle

2. That the vehicle was driven on the road at the time of the offence.

3. That the vehicle and load did not comply with the applicable load requirements.

4. That the defendant permitted the driver to drive the vehicle.

5. That there was no reasonable excuse.


15. The respondent further alleged that this incident was a severe risk contravention by virtue of s 114 of the HVNL. Section 114 provides that a contravention of a loading requirement applying to a heavy vehicle is a severe risk if the subject matter of the contravention involves a loss or shifting of the vehicle’s load that involves an appreciable risk to safety, damage to road infrastructure or of causing an adverse effect on public amenity.


16. The first four elements of the offence, and the issue of severe risk, must be proven by the prosecution beyond reasonable doubt. The Magistrate was satisfied beyond reasonable doubt of each of those elements. In particular he found that the reason the car body flipped out of the trailer was the size of the trailer. The respondent sent a large tipper to Paradise Motors having been informed that there were 5-6 car bodies to be transported. Whilst appropriate for 5-6 car bodies, this tipper was too large to safely transport the four car bodies that were in fact loaded because large tipper permitted movement in the load. No issue is taken with these findings.


17. The charge was therefore proven unless the respondent could establish that there was a reasonable excuse on the balance of probabilities. The Magistrate found that the respondent had a reasonable excuse for permitting Mr McDonald to drive in the circumstances that led to the car body leaving the tipper truck on 26 September 2019. Accordingly, he found the respondent not guilty.


General Principles


18 The appellant’s right of appeal arises under s 42 of the Magistrates Court Act 1991 and is by way of rehearing. It is not an appeal de novo and usually proceeds on the documents albeit with power to receive further evidence. In this case no additional evidence was called; the matter proceeded by way of submissions concerning the transcript and the exhibits. The exhibits included a disc containing two recorded interviews with Mr McDonald and one with Mr Giannopoulos.


19 .The court hearing the appeal is required to conduct a real and independent review of the evidence put before the Magistrate and come to its own conclusions.[5] The court however must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence given at trial. The court should bear in mind that it did not hear or see the witnesses, and it should not interfere with a Magistrate’s findings of fact unless they are demonstrated to be wrong by “‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.[6] As the plurality stated in Fox v Percy:[7]

In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.


(Citations Omitted)


The issue and submissions


20. The sole issue on the appeal is whether the Magistrate was correct to find that the respondent had a reasonable excuse under s 24 of the HVNL. Section 24 of the HVNL provides:

In proceedings for an offence against this Act in which it is material to establish whether an act was done with or without lawful authority, lawful excuse or reasonable excuse, the onus of proving the authority or excuse lies on the defendant and, in the absence of such proof, it will be presumed that no such authority or excuse exists


21. At trial, the respondent contended that it had systems in place for the safe transport of the 5-6 car bodies that it believed were to be transported. It further contended that it had trained Mr McDonald in these systems and that, on discovering that there were only four car bodies to be transported, he ought to have contacted the respondent who would have taken alternative steps to ensure safe transportation of the smaller load. The respondent submits that it was open on the evidence for the Magistrate to find that the respondent’s lack of knowledge or awareness in those circumstances was a reasonable excuse.


22. The appellant, however, contends that the Magistrate’s finding that the respondent had a reasonable excuse was not open on the evidence. First it is said that the finding was, in effect, that a lack of specific awareness on the part of the respondent was sufficient. This, it is said has a tendency to undermine the aims of the HVNL. The appellant further contends that it was not open to the Magistrate to find that, through its training of Mr McDonald, the respondent created circumstances where it had a reasonable expectation that Mr McDonald would identify that there was an issue that required him to contact the respondent.


Consideration


23. This is an offence of strict liability. The appellant did not have to prove that the respondent knew that a loading requirement was not complied with. The HVNL seeks to fulfil its objectives by imposing requirements on those who permit others to drive a heavy vehicle on the road to ensure compliance with loading requirements.


24. The HVNL does not define reasonable excuse. The Magistrate quoted Taikato v. The Queen[8] where it was determined that what constitutes a reasonable excuse in a given context depends upon the circumstances of the case and the purpose of the provision to which the defence is an exception.[9] In Taikato the plurality noted that:

The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgement and applying a rule; the court exercising criminal jurisdiction should prefer the rule...


However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. [10]


25. In formulating that content, the court should avoid an interpretation that defeats the purpose of the legislation.


26. The Magistrate noted that the HVNL places a heavy burden on companies and drivers to:

...ensure that safety, as opposed to profit or efficiency is the paramount consideration. To this end while the driver of a heavy vehicle is ultimately responsible for matters such as proper load restraint, the existence of liability also for the driver’s employer, suggests that the legislation seeks to place an obligation on haulage companies to surround their drivers with the right training, equipment, and support.[11]


27. The Magistrate went on to say that, considering the purpose of the HVNL, the words “reasonable excuse” must operate:

...so as to encourage proper training, equipping and support without punishing those employers who put these resources in place and yet failings beyond their knowledge or control render them ineffective.[12]


28. Both of these propositions are, in my view, correct. Improperly secured loads transported by heavy vehicles have the potential to cause substantial injury and damage to other road users and infrastructure. By imposing responsibility not only on the driver, but also the driver’s employer, the HVNL seeks to ensure compliance with loading requirements.


29. The Magistrate’s ultimate conclusion was summarised as follows:

For the job the defendant thought Mr McDonald was performing with 5-6 car bodies, the measures taken to transport such a load adhered to the proper standard. The critical factor in turning what was a generally safe way of transporting car bodies to one which was inherently unsafe, was the fact that only 4 car bodies were loaded onto the larger tipper. This was contrary to the procedures of Paradise Motors as set out in point 5 of P6 and not communicated to the defendant by Mr McDonald. Mr McDonald should have been aware that the fourth car body was not and could not be compacted into the tipper. Obviously the fourth car body was in no way limited in its movements by having another car body close behind it or touching it. These things should have rung alarm bells for Mr McDonald, especially as by his own admission, at times he had noticed in the past that the top layer of cars can move around in transit. The failure to pass this information on to his employer deprived them of the ability to take some action. That action I find proven beyond reasonable doubt would have been to send the smaller tipper.[13]


30. I reject the appellant’s contention that the Magistrate’s findings amounted to a decision that lack of specific awareness on the part of the respondent was enough to find a reasonable excuse. If they had; I accept the submission that this would tend to undermine the purpose of the HVNL and would therefore be wrong. However, it is plain from the approach that the Magistrate took, and the principles that he cited in relation to the determination of what constitutes a reasonable excuse, that he understood something more was required. The Magistrate’s reasons read as a whole, indicate his view that the respondent was only able to establish a reasonable excuse if it could demonstrate that its training, and policies were such that it had a reasonable expectation that the driver, Mr McDonald, would identify a problem with the load and contact the respondent.


31. The appellant concedes that there was an evidentiary basis to find on the balance of probabilities that:

  • the respondent did not know that the load that was being transported was four cars rather than 5-6; and that

  • had the respondent known this, the respondent would have implemented their policy of transporting four or less car bodies in a smaller tipper than was used on this occasion.

32. However, the appellant says that the Magistrate’s conclusion that the respondent had done all that it could have done by way of policy and training of Mr McDonald in those policies was not available on the evidence.


33. I have considered the transcript of the evidence and the recorded interviews, bearing in mind the Magistrate’s advantage of seeing and hearing all of the evidence. The Magistrate found all witnesses to be honest and doing their best to recall matters from some years ago. The Magistrate further found that inconsistencies between Mr McDonald’s recorded interviews and his evidence were “minor and immaterial” and did not lead him to doubt his honesty or reliability on matters of substance. The difficulty with the Magistrate’s acceptance of Mr McDonald’s evidence, particularly about his training and the allocation of work by the respondent, is that significant aspects of it were inconsistent with the other evidence and key findings.


34. The Magistrate found that the respondent’s Safe Work Method Statement[14] (SWMS) does not contain any statement as to the driver ensuring that a smaller tipper is used for four or less car bodies.[15] The Magistrate did not accept that the respondent’s training was specific in identifying the risk of transporting four car bodies in the larger tipper. He rejected Ms Mouratidis’ evidence on that topic as reconstruction.[16] However, the Magistrate found that the respondent had trained its staff, including Mr McDonald, that to safely transport car bodies there was a need to make sure the bodies were tightly packed.[17] Further, he found Mr McDonald was trained in the need for horizontal contact between the car bodies,[18] Accordingly he found that Mr McDonald’s training with the respondent should have provided him with the knowledge to identify the potential hazard he was presented with.


35. The car bodies were loaded into the tipper by a forklift driver employed by Paradise Motors. The Magistrate said that the fact only four car bodies were loaded on to the larger tipper was contrary to Paradise Motors’ procedure[19] “as set out in point five of Exhibit P6 and not communicated to the defendant by Mr McDonald”. It is not clear on the evidence if Mr McDonald was trained in accordance with that procedure, which was not the respondent’s procedure, or whether he was even aware of it. Point 5 of the Paradise Motors procedure reads:

Once filled to maximum the contractor will check the load and if happy he will continue to deliver the load to the scrap yard,


36. The “maximum” is stated to be “the maximum line as indicated by the bin.”[20] There is no reference in the procedure to the number of car bodies or the size of the trailer. I assume that the Magistrate’s finding was that the respondent’s trailer was not “filled to maximum”.


37. Mr McDonald accepted that it was always the responsibility of the driver to ensure the load was correctly loaded before transporting and that if there were any issues, he had been instructed to contact the respondent before proceeding further. It is uncontentious that he did not contact the respondent. Mr McDonald gave evidence that he did not see any issue with the load that required him to do so.


What training was provided by the respondent?


38. In his first interview on 26 September 2019[21] Mr McDonald described being trained whilst employed by another company. He said that he had never been offered training by the respondent, but rather his driving had been assessed by them prior to commencement. In his second recorded interview on 6 November 2019[22], he said that Mr Giannopoulos had “gone through everything” with him, and that Mr Giannopoulos had driven with him to ensure he was doing things correctly. It is not entirely clear what was meant by “everything” but Mr McDonald did say that they went through various restraints for loads transported on flat beds.


39. In his evidence in chief, Mr McDonald again said he received no induction and training from the respondent rather they assessed his abilities and then gave him a job. In cross examination he was reminded of what he said in the second interview. Mr McDonald nonetheless said he was not sure that he received training. Mr McDonald was shown Exhibit D1, a load restraint training assessment apparently signed by him and dated 3 June 2017. Mr McDonald identified his signature but was unsure whether he participated in a written assessment or whether the form was just given to him, and he filled it out. Mr McDonald was asked about the portion of the second interview where he referred to training with Mr Giannopoulos. Mr McDonald could not remember that training but did recall going out to a job later with Mr Giannopoulos. The SWMS deals with the procedure for loading scrap metal and cars into tipper bodies with a tail gate. Mr McDonald could not recall the SWMS when asked about it in cross-examination but agreed that he signed it on 26 September 2019. This is the day of the incident. It is not clear from the transcript whether it is said that this document formed part of Mr McDonald’s training.


40. Ms Mouratidis gave detailed evidence about training provided by the respondent to new employees including driver testing, online and on-site induction[23]. Training was tailored to a driver’s experience. It is uncontentious that Mr McDonald was a very experienced driver, but the tenor of Ms Mouratidis’ evidence was that nonetheless he would have received training. Ms Mouratidis also said that new drivers were allocated work in line with their experience and that they operated a “buddy” system to support them during their first few jobs. Ms Mouratidis explained how the restraint guidelines were established and how drivers were trained and reminded of those guidelines. Her evidence dealt with the respondent’s general practice. She did not say precisely what training was provided to Mr McDonald.


41. Mr Giannopoulos told the investigators that the respondent provides training for all new drivers regardless of their experience. The training can last 2 – 3 weeks and new drivers are accompanied by an experienced driver such as himself. The training included a standard operating procedure for restraining loads that he referred to as the “LRG”. The training included a written test. Mr Giannopoulos spoke about the respondent’s general practice in terms of training. He did not say what training was provided to Mr McDonald.


How did the respondent allocate work?


42. Ms Mouratidis gave evidence that the respondent would receive details of the job which would be communicated to the driver. Based on the information provided by their customer the respondent allocated the trailer and instructed the driver. In relation to the particular job with Paradise Motors, the respondent received instructions from Sims Metal to collect 5-6 cars from Paradise Auto and to transport those to Sims Metal’s site at Gillman. On that basis the larger trailer was allocated to Mr McDonald. If they had known it was only going to be four vehicles, they would have sent a smaller style, high sided tipper so that the four cars could have been crammed in. Ms Mouratidis said that Mr McDonald should have telephoned to advise that there was something wrong with the load. They would then have sent the smaller trailer.[24]


43. Mr McDonald on the other hand gave evidence that he would generally take the big trailer because he did not know what he was picking up until he actually got to the site.[25] He said that the respondent would not know how many vehicles were being picked up. He said he had no reason to be concerned about this particular load saying:

It was just a standard job that we’d go and do, but not knowing what – how many cars, that’s the only thing that was possibly odd about it. You don’t know how many cars you’re going to get until you get there.[26]


44. In cross-examination, Mr McDonald maintained that he did not know how many cars he was to pick up until he got to the job. He agreed that with only four car bodies in the trailer he would have seen that there was some movement in the trailer body. He did not however think that he needed to contact the respondent in line with the SWMS because he had carted 2-4 cars before in those tubs.[27]


Loading of vehicles


45. Mr McDonald said that the vehicle bodies were loaded by a forklift driver at Paradise Motors to “below a water level load so they’re not hanging out over the top”[28]. He clarified that the water level was the top of the bin. It was put to him that if he was collecting four cars, he would have instead taken the smaller trailer, but he said: “probably not, no, because we – they’ve – you can’t fit the vehicles one on top of the other in some of those trailers without it being past the water level load.”[29]


46. Mr McDonald accepted that he had the responsibility to ensure that the load was properly secured. It is clear from the whole of his evidence that he did not see a problem with the load on this occasion and, accordingly, he did not contact the respondent.


47. Mr Giannopoulos said that the respondent had transported loads of this type for 45 years and had never had a problem. The loads were not tied down if they were below the waterline. The waterline was the top of the sides of the tub. There was no way to tie the load down if it was below the waterline. The only way it could be secured was by loading the vehicles so that any vehicles on top were wedged in between the cars on the bottom. Mr Giannopoulos said that the number of car bodies that needed to go into the tipper depended on the size of the tipper. It was the individual driver’s responsibility to ensure the load was secure and, if there were any problems, to contact the respondent.


48. Ms Mouratidis gave similar evidence to Mr Giannopoulos concerning the loading of car bodies into the tipper. She said that the vehicles only needed to be restrained if they were above the water level. She referred to the SWMS. In particular the following portion of the SWMS:

Spotters and drivers must feel cars and bailing/heavy have been evenly into the bin. Load is to below the water level (300 mm below). If load exceeds water level, cars must be used to cap the load if possible and cars must be secured thru a strap thrown over the tipper body (sic).[30]


49. Ms Mouratidis agreed that there was nothing in the SWMS that indicated the car bodies needed to be “crunched in”[31] and then said:

...but, that’s why we get notified with the car bodies on the night before and we utilise which trailer gets sent out to the collection. And, with the training that we’ve given the drivers, they should know to notify us if there’s any changes.[32]


50. The Magistrate found that there was a misunderstanding between Mr McDonald and the respondent about what the meaning of the water level was. He found that it was 300mm below based on the SWMS. This is in line with Ms Mouratidis’ evidence, but I note that Mr Giannopoulos, who on the respondent’s case trained Mr McDonald, supported Mr McDonald’s evidence that it was the top of the bin. In any event, the relevance of this is limited. All witnesses agreed that the significance of the water level was that, if the vehicles are below the water level, they do not need to be restrained. There was no suggestion that the vehicles on this occasion were loaded above the water mark wherever it was located.


Conclusion


51. Having accepted all of the witnesses as honest and reliable, the Magistrate did not resolve two key conflicts of evidence.


52. First, there is the conflict concerning the number of car bodies to be collected and the allocation of trailers. Mr McDonald’s evidence was that he never knew how many car bodies he would collect and that therefore he would usually take the large tipper. On the other hand, Ms Mouratidis said that the customer would advise the number of car bodies to be collected and that the respondent would allocate the appropriately sized tipper to the driver. The driver did not select his own tipper.


53. Second, there is the conflict about the training provided to Mr McDonald by the respondent. Mr McDonald’s evidence was internally inconsistent and inconsistent with the evidence given by Ms Mouratidis and the recorded interview of Mr Giannopoulos. In essence he said he had received little, if any, training from the respondent whereas Ms Mouratidis’ evidence detailed the respondent’s general practice concerning training which, by implication, suggested that Mr McDonald would have received training notwithstanding his prior experience. Mr Giannopoulos’ interview was generally supportive of the evidence of Mr Mouratidis. Ms Mouratidis’ evidence and Mr Giannopoulos’ interview formed the basis of the respondent’s contention that Mr McDonald ought to have realised there was a problem with this load and ought to have communicated this to the respondent.


54. The Magistrate found that Mr McDonald:

  • was presented with a situation which was very uncommon. Specifically, that there was a request to transport five to six car bodies but only four were loaded onto his truck ”.[33]

  • failed to appreciate the difference between carrying five car bodies loaded tightly together and four car bodies where the fourth sat on top of the bottom three[34]; and

  • failed to appreciate the dangers inherent in the fact of the fourth body being in no way limited in its movements.[35]

55. These findings do not sit comfortably with the findings that the respondent had not specifically identified the need to use a smaller tipper to transport four or less car bodies in either the SWMS or the respondent’s driver training. Accordingly, Mr McDonald could not have been alerted to an issue by reason of the number of vehicles or the size of the trailer even had he been informed of the number of vehicles. Mr McDonald’s evidence was that he did not know that the respondent had been instructed to collect 5-6 car bodies. There was no evidence that Mr McDonald was informed of this. Further the finding that this was an uncommon situation is contradicted by Mr McDonald’s evidence that he never knew how many cars he was to collect and therefore generally took the larger tipper.


56. The finding of reasonable excuse rests on the respondent’s expectation that, due to a combination of training, policies and instruction, Mr McDonald ought to have identified an issue and communicated this to the respondent. Subjectively, Mr McDonald did not have a concern about the load. On his evidence there was no basis for him to conclude that there was a problem nor was there any necessity to contact the respondent. Given the Magistrate’s acceptance of Mr McDonald’s evidence and the failure to resolve the conflict between that evidence and that of Ms Mouratidis it was not possible to conclude that the respondent had a reasonable expectation that Mr McDonald would identify an issue on being presented with four car bodies to transport in the large tipper.


57. Accordingly, I allow the appeal. Remit the matter to a date in the Magistrate’s Court for rehearing.


[1] Plenty v Dillon [1991] 171 CLR 635.


[2] Police v Korber [2003] SASC 69; [2003] 85 SASR 472.


[3] GHS Safety Products Australia Pty Ltd (No 2) [2019] NSWSC 723.


[4] McGorm v Bennett and Bennett (Unreported SASC, 22 May 1981).


[5] Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS; [2010] SASC 141, [38]-[39] (White J); Pol v City of Port Adelaide Enfield [2017] SASC 116, [15] (Nicholson J).


[6] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 687 (French CJ, Bell, Keane, Nettle and Gordon JJ).


[7] Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ).


[8] [1996] HCA 28; (1996) 186 CLR 454.


[9] At [464].


[10] At [466].


[11] Reasons for Decision at [60].


[12] Reasons for decision at [61].


[13] Reasons for Decision at [62]


[14] Exhibit D3.


[15] Reasons for Decision at [50].


[16] Reasons for Decision at [53].


[17] Reasons for Decision [53].


[18] Reasons for Decision [55].


[19] Exhibit P6.


[20] Exhibit P6; point 3.


[21] Exhibit P2.


[22] Exhibit P4.


[23] T39-40; 45-46.


[24] T41-42.


[25] T31.


[26] T21


[27] T33.


[28] T20.


[29] T33.


[30] D3 page 6.


[31] T44.


[32] T45.


[33] Reasons for Decision [56].


[34] Reasons for Decision [55].


[35] Reasons for decision [62].


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