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Magistrate records conviction in case of ‘complete indifference’ to legal obligations

21 August 2019
A South Australian magistrate has recorded a conviction against Bitumax Pty Ltd and fined the company $9,900 for failing to comply with statutory loading limits in March 2018. 
The truck was carrying a load of gravel which had not been weighed and there were no operating, calibrated scales on either the truck or loader for use by its operator. Instead, the loader had been instructed as to ‘how many’ buckets they were to place in the truck. This resulted in the load being 120% over the statutory limit. 

Magistrate Semmens concluded the loading and transport of the materials involved ‘pure guess work and speculation’ as to compliance with the correct loading amount. The Magistrate commented that not only did the gross overloading place the community at risk, but also the company’s own workers. 

The company’s breach was aggravated by the fact that requests had been made on three separate occasions for scales to be made available to the loader. The Magistrate concluded this was a case of wilful blindness that fell far short of good corporate governance. Mitigating factors included the company’s guilty plea and that following the event, the company went to great expense to review its procedures, including implementing training, education worksite meets and internal audits and ensuring all trucks and loaders were fitted with scales. It was found irrelevant that the truck used was a replacement vehicle and that there had been reliance on the manufacturers load limits. 

Ultimately, it was held that in such an extraordinary case of indifference to legal obligations the mitigating circumstances were not compelling and a conviction was recorded. 

This decision illustrates the increasing presence of the National Heavy Vehicle Regulator and the strict liability nature of offences under the Heavy Vehicle National Law (HVNL).  We expect to see more cases focussing in on the chain of responsibility requirements of the HVNL.

If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Andrew Ross.

We would like to acknowledge the contribution of Kate Archibald to this article.

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