Verification of competency for heavy vehicle drivers

June 20, 2021
Category: Heavy vehicle law

Learn why verification of competency (‘VOC’) for heavy vehicle drivers is important

Verification of competency for heavy vehicle drivers is an important duty required of transport companies.

According to National Heavy Vehicle Law (NSW) s 26D(3) (‘NHVL‘), due diligence includes taking reasonable steps—
(a) to acquire, and keep up to date, knowledge about the safe conduct of transport activities; and
(b) to gain an understanding of—
(i) the nature of the legal entity’s transport activities; and
(ii) the hazards and risks, including the public risk, associated with those activities; and
(c) to ensure the legal entity has, and uses, appropriate resources to eliminate or minimise those hazards and risks; and
(d) to ensure the legal entity has, and implements, processes—
(i) to eliminate or minimise those hazards and risks; and
(ii) for receiving, considering, and responding in a timely way to, information about those hazards and risks and any incidents; and
(iii) for complying with the legal entity’s safety duties; and
(e) to verify the resources and processes mentioned in paragraphs (c) and (d) are being provided, used and implemented.

Furthermore, NHVL s 26F(1) states the maximum penalty for failing to comply with a duty as $3,000,000. This is a significant incentive to plan the verification of competency for heavy vehicle drivers.

Moreover, in cases of serious offences, such as Crimes Act 1900 (NSW) s 52A(1) Dangerous driving occasioning death, an employer who has knowledge of dangerous driving could be said to be aiding, abetting, counselling or procuring the crime, and be dealt with under Crimes Act 1900 (NSW) s 351B(2) ‘[o]n conviction any such person is liable to the penalty and punishment to which the principal offender is liable’. This is a higher hurdle for the prosecution to clear compared with an action under the NHVL as the employer’s knowledge of the facts of a particular offence is an ingredient the crown must prove, and recklessness or negligence is not enough. However, wilful blindness may constitute knowledge: Giorgianni v R (1985) 156 CLR 473, 482. Further authority for the proposition that wilful blindness equals knowledges is R v Crabbe (1985) 156 CLR 464, 470 where the Full Court of the High Court of Australia held that

When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth, he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.

The message to transport operators here is simply that closing one’s eyes to an employee or contractor breaking the law may in fact be procuring the crime and you may be penalised like you committed the crime yourself. And of course, corporations are not insulated against criminal actions as courts have their ways of penalising companies.

And if all that’s not enough to encourage companies to plan the verification of competency for heavy vehicle drivers, there is the risk of being vicariously liable in a civil action of negligence. In fact, one of Verifico’s clients experienced a rise of almost double to their insurance premium due to having a serious accident. Moreover, their insurer also required that they have all their driver’s competency verified as a condition of providing insurance, and thus they found Verifico.

To conclude, transport companies have serious risk of liability, including, but not confined to: the NHVL; the criminal law on being an accessory before the fact; and the law of vicarious liability. As this paper shows, the cost of not funding training and or heavy vehicle driver verification of competency could be significant. 

Verifico can assist you with taking the reasonable step of verification of competency for heavy vehicle drivers and addressing any skills gaps. Call 1300521289 today.

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