Primary duty definitions

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What does 'reasonably practicable' mean?

Definition: ‘Reasonably practicable’ is the legal standard for complying with the primary duty.

Put simply, it is how much trouble and expense you should go to so as to eliminate or minimise a risk, judged on what an ordinary, reasonable person would think was reasonable in the circumstance.

Because no two circumstances are the same, there is no single way to ensure safety. What would be reasonably practicable in one situation may be insufficient or excessive in another. What is consistent is the expectation of reasonableness.

What is 'reasonably practicable' is assessed based on:

  • the probability of an incident
  • the harm that could result
  • what you know about potential risks and how to control them
  • whether controls are available and suitable
  • the cost of controls in proportion to the risk.

This is the same way compliance with work health and safety laws is assessed. This method of assessment is used because there is so much variation in how businesses operate that specifying requirements won’t result in uniform levels of safety.

A safety measure that would be enough in one situation might be completely inadequate in another and excessive in a third set of circumstances. For example, measures that would be reasonably practicable for transporting bulk grain on a rural highway would not be enough for transporting flammable liquids through a densely populated urban area.

What you must do – and what a court would do – is weigh up the degree of risk, inform yourself about control methods, and choose the methods to eliminate or minimise risk that are available and suitable.

Expense is a factor, but unless the cost of suitable control measures is out of all proportion to the risk, it is not a reason for failing to implement those measures. In some situations, the risk may be so high that there is no effective way to eliminate or minimise it to an acceptable level. In that case, the activity is not permitted.

In order to work out what is reasonably practicable, businesses and their executives need to thoroughly understand the tasks that are being carried out, the risks they create, and the ways to eliminate or minimise those risks. The best place to start those inquiries may be with registered Industry Codes of Practice.

Note: Parties who have a primary duty are expected to know information about hazards, risks and controls in a registered code of practice. See HVNL s632A.

What does 'safety' mean?

Definition: For the primary duty, ‘safety’ means eliminating ‘public risk’ in relation to the:

  • safety of drivers and passengers in heavy vehicles
  • safety of other road users and people near roads
  • protection of property including vehicles and loads
  • protection of road infrastructure
  • prevention of harm to the environment.

The HVNL has detailed requirements about managing driver fatigue, complying with mass and dimension limits, safely restraining loads and maintaining safe vehicles. These are some of the most critical safety issues in heavy vehicle transport. If you have systems in place to make sure these requirements – as well as speed limits - are being met, your business is well on the way to complying with its primary duty.

Other safety issues that are not covered by specific regulations in the HVNL but should also be considered include:

  • inadequate training or competence
  • driver distraction
  • failing to drive to conditions
  • traffic congestion outside loading premises
  • controlling vehicle emissions
  • driver physical and mental health
  • the use of alcohol and other drugs
  • effluent management
  • spreading diseases borne by livestock.

Your direct knowledge and experience mean you can probably identify where risks or hazards exist in your work or business. Add to your risk know-how by seeking out other sources of information about safety risks such as registered codes of practice, industry publications and guidance material from road safety and research bodies, police and road authorities.

If you are an executive of a business, you have a legal obligation to stay informed about safety issues. See the Executive Due Diligence Duty.

What does 'transport activities' mean?

Definition: Transport activities are everything you do, or your business does, that’s related to the use of a heavy vehicle on a road, including:

  • all CoR functions
  • 'business practices' such as purchasing vehicles or equipment, making contracts, running a depot, hiring and training employees, developing and implementing policies and procedures, and managing risk
  • making decisions
  • contracting, directing or employing a person to drive a heavy vehicle
  • contracting, directing or employing a person to do other work associated with a heavy vehicle, such as repairing or maintaining it.

Note: ‘Transport activities’ is an inclusive definition. It gives examples of things that are included in the definition, but they are only examples. Other activities that are not on the list will still be ‘transport activities’ if they fit the main definition.

Note: The primary duty requires every party in the CoR to eliminate or minimise risks from all the transport activities they influence or control - not just the activities related to their CoR role. For example, a company that packs goods for truck collection also has influence on the fatigue, speeding and load restraint risks of those vehicles. So, it must eliminate or minimise its contribution to those risks so far as is reasonably practicable.