Note: This information is intended as general guidance only and does not constitute legal advice. We encourage you to obtain independent advice about your legal obligations. If you have any feedback on the information provided, please contact us at info@nhvr.gov.au

This regulatory advice provides guidance on obligations under the Heavy Vehicle National Law (HVNL) to manage the safety risks associated with driver inattention and distraction.

Who is this advice for?

This regulatory advice provides guidance for:

• parties in the Chain of Responsibility (CoR) and their executives.
• heavy vehicle drivers.

What are my legal obligations?

This is an obligation to eliminate or minimise public risks, and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL. CoR parties and their executives, should be aware that they remain a CoR party even when their transport activities are contracted, or subcontracted, to another party.

What are the legal consequences?

If your business is a party in the CoR and it fails to eliminate or minimise public risks so far as is reasonably practicable, then it may be in breach of its primary duty. If a breach is proven, the law provides sanctions against a company and its executives, ranging from education and formal warnings for minor offences, to improvement notices and prosecution for more serious offences.

Drivers

Drivers are subject to relevant state and territory laws regarding driver distraction.

Why is this an issue for my business?

The heavy vehicle transport industry is one of the most dangerous in the country, with truck drivers being 13 times more likely to die at work than other Australian workers.^[1] Therefore, it is important that parties in the CoR and heavy vehicle drivers do everything they can to eliminate or minimise the risk.

Driver distraction continues to grow as a leading cause of heavy vehicle crashes. Research has shown that driver distraction is attributed as the second most common cause of heavy vehicle crashes, only marginally behind driver fatigue. Driver distraction contributes to around 18% of fatal and injury crashes.^[2]

In 2020, 15.4% of heavy vehicle large loss incidents were attributed to driver inattention or distraction.^[3] There are many causes of driver distraction: however, one of the most significant is mobile phone and other handheld device usage.

A recent study highlighted the prevalence of this issue where, during a 6-month period, over 100,000 motorists were detected illegally using mobile phones.^[4]

What are the causes of driver inattention and distraction and how can I identify them?

There are several causes of driver inattention and distraction. Most involve drivers undertaking secondary tasks while driving. While the safety risks of inattention and distraction are the same, their causes are different.

Driver inattention

This is caused when a driver is essentially daydreaming. The driver’s concentration wanders from the driving task and can result in the driver being oblivious to what is happening around them. Driver inattention can also be an indication of driver fatigue and often precedes a fatigue event, such as a microsleep.

Driver distraction

This is caused by external stimulus – for example, reaching for an object, responding to a notification on a mobile device, searching for a radio station, or reacting to spilling a drink.

It is important that all drivers are made aware of the potential consequences if they become inattentive or distracted, and what the common causes are. Parties in the CoR, especially operators who have an influence over transport activities, should ensure drivers are equipped with the knowledge, tools and strategies to prevent inattention and distraction.

Driver monitoring technology can be useful to capture and analyse driver activity. This technology can provide operators with information in real-time about driver distraction and fatigue events, while simultaneously alerting the driver. This allows both the operator and driver to immediately respond to the potential risk. Data collected can be utilised to identify patterns in driver behaviour and schedules, or routes with a high-risk of inattention or distraction events. This data, along with other relevant information, will assist parties in the CoR to proactively manage the associated risks and hazards.

What are the risks and hazards?

Hazards from driver inattention and distraction may include:

• taking your eyes off the road resulting in driving blindly
• increased likelihood of crashing
• delayed reaction time.

The potential safety risks resulting from these hazards may include:

• serious injury or death of drivers, road users and the public
• damage to equipment, the road and other infrastructure.

Why is it important to manage these risks and hazards?

By appropriately managing these risks and hazards as a party in the CoR, you help to:

• prevent injury and fatalities of employees and members of the public
• create a safety culture within your business, where workers are encouraged to make informed decisions about safety
• avoid financial losses due to delays, impacts on scheduling, damage to vehicles, equipment, and infrastructure
• avoid regulatory and other legal sanctions
• enhance your business’s reputation and position as a business or employer of choice.

How to do I manage these risks and hazards?

One of the most effective ways for CoR parties in the heavy vehicle supply chain to manage the safety of their transport activities is to adopt and actively use a Safety Management System (SMS) as part of their everyday business.

An SMS is a systematic approach to managing safety which, once implemented, will help CoR parties identify how to ensure the safety of their transport activities, so far as is reasonably practicable.

As part of the risk management process, CoR parties should:

• identify hazards associated with their transport activities
• assess the risks associated with those hazards
• identify and implement control measures to eliminate or minimise those risks
• review the effectiveness of control measures, either periodically or after any incident, to ensure they remain effective.

CoR parties that have a greater influence over driver distraction, such as operators or employers, may consider control measures, such as:

• develop and implement policies and procedures to eliminate or minimise driver inattention and distraction
• provide tailored training to drivers on driver distraction and mindfulness
• ensure heavy vehicles are equipped with Bluetooth connectivity and that drivers are provided with training on how to connect devices
• install a mobile device mount in a location where drivers can safely view the device while still focusing on the road
• consider technology options that will help identify inattention and distraction events, such as smart dash cams and specialised driver monitoring devices
• configure the heavy vehicle cabin in a way that minimises the need for drivers to reach for objects – for example, placement of paperwork or a place to secure a water bottle
• schedule transport activities with sufficient time so drivers do not need to undertake secondary tasks while driving to meet deadlines
• respond to incidents of driver inattention and distraction with a safety forward attitude
• encourage drivers to self-report near misses as a result of inattention and distraction
• use data about inattention and distraction incidents to implement meaningful changes in workplace policy and procedures
• promote a culture of safety within your business.

Drivers can take measures to minimise risks including:

Inattention

• be aware that you may become unconsciously inattentive or daydream while operating a heavy vehicle
• use sensory triggers to regain focus on the road – for example, squeeze the steering wheel or look at a visual focal point, such as a sticker on the windscreen
• practise mindfulness exercises to improve concentration
• recognise inattention as a potential sign of fatigue.

Distraction

• do not use mobile devices when driving
• if you must use your mobile device, use only handsfree operation such as voice or vehicle manufacturers steering wheel control
• use Bluetooth or other technology options for mobile device connectivity
• secure mobile devices to a mount while driving
• place mobile phones on do not disturb before operating a heavy vehicle
• queue music, podcasts or select a radio station prior to undertaking the journey to ensure minimal interaction with devices while driving
• do not use noise-cancelling headphones while operating a heavy vehicle. These can limit your ability to hear cabin alerts and emergency vehicle horns/alarms
• avoid undertaking secondary tasks, such as eating and smoking, while operating a heavy vehicle
• place items, such as paperwork and water bottles, in an easy-to-reach and consistent spot in the cabin
• use an analogue watch or place smart watches on do not disturb whilst operating a heavy vehicle
• if you are travelling with a passenger, ask them to undertake secondary tasks for you such as organising paperwork, navigating and using mobile devices.

Resources

Master Code

Guidance and direction on how to effectively introduce a risk management process within your business can be found in Section 3 of the Master Code

Safety Management System (SMS)

Management of safety risks can be more effective with the adoption, development and active use of an SMS.

An SMS is a systematic approach to managing safety – including the necessary organisational structures, accountabilities, policies and procedures – which is integrated throughout the business wherever possible.

An SMS can help you:

• provide a safer work environment for your employees, customers, contractors and the public
• manage your safety duties under the HVNL
• demonstrate your ability to manage risk and ensure safety
• become an employer of choice and preferred supplier to customers
• make informed decisions and increase efficiency
• allocate resources to the most critical areas that have an impact on safety
• reduce costs associated with incidents and accidents.

Regardless of the size of your business, an effective SMS can help you have an appropriate safety focus and comply with your duty to ensure the safety of your transport activities, so far as is reasonably practicable.

Targeted guidance, tools and information about the development and implementation of an SMS is available in the 9 Step SMS Roadmap.

Understand the HVNL and your primary duty

Under the HVNL section 26C, each party in the CoR has a primary duty to ensure the safety of its transport activities, so far as is reasonably practicable. This duty includes an obligation to eliminate or minimise public risks and a prohibition against directly or indirectly causing or encouraging a driver or another person, including a party in the CoR, to contravene the HVNL.

Transport activities

Transport activities include all the activities associated with the use of a heavy vehicle on a road. It includes safety systems, business processes such as contract negotiation and communication and decision making, as well as the activities normally associated with the transport and logistics sector such as training, scheduling, route planning, managing premises, selecting and maintaining vehicles, packing, loading and unloading.

So far as is reasonably practicable

So far as is reasonably practicable means an action that can reasonably be done in relation to the duty, considering relevant matters such as:

• the likelihood of a safety risk or damage to road infrastructure
• the harm that could result from the risk or damage
• what the person knows, or ought reasonably to know, about the risk or damage
• what the person knows, or ought reasonably to know, about the ways of removing or minimising the risk, or preventing or minimising the damage
• the availability and suitability of those ways
• the cost associated with the available ways, including whether the cost is grossly disproportionate to the likelihood of the risk or damage.

More information can be found in Regulatory Advice - Reasonably practicable.

Due diligence

Exercising due diligence includes taking reasonable steps to:

• acquire and maintain knowledge about conducting transport activities safely
• understand the nature of the business’s transport activities, including the hazards and risks associated with those activities
• ensure the business has, and uses, appropriate resources to eliminate or minimise the hazards and risks associated with its transport activities
• ensure the business has, and uses, processes to eliminate or minimise the hazards and risks associated with its transport activities, and that information about hazards, risks and incidents is received, considered and responded to in a timely way.

Executive due diligence

Examples of executive due diligence activities include:

• collecting information about incident rates to see if the safety management plan is working
• participating in industry-led forums and safety seminars
• ensuring work procedures are being followed and result in improvements in safety
• ensuring safety incidents are responded to and investigated
• implementing learnings from the investigation of safety incidents.

References

1. ↑ Monash University Driving Health Study 2018
2. ↑ National Road Safety Partnership Program
3. ↑ The NTI and NTARC Major Accident Reports for 2020 and 2021
4. ↑ The NSW Government Mobile Phone Detection Camera Program

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