Vicarious liability and health and safety

In Legal Lines, October 20195 MinutesBy NZ Trucking magazineNovember 11, 2019

I have been asked by a reader to discuss the relationship between the chain of responsibility provisions in the Land Transport Act 1998 and the obligations on employers in the Heath and Safety at Work Act 2015. This month I will give a summary of the chain of responsibility principles and next month I will focus on the interface between this legislation and the new health and safety laws.

Chain of responsibility
Section 6C of the Land Transport Act 1998 contains three sections entitled ‘Offences relating to chain of responsibility‘. The chain of responsibility is a principle that exists in New Zealand and comes from the concept of vicarious liability in which the superior has responsibility for the acts of their subordinate. In the context of the Land Transport Act it recognises that the people who influence drivers‘ behaviour and compliance should and must be held accountable if that influence results in non-compliance with traffic rules and laws.

Vicarious liability
People who influence drivers‘ behaviour can include company directors, consignors, operators, packers, loaders, schedulers, dispatchers, receivers, and customers of a transport service. It shares rather than transfers the responsibility between the parties. It is a necessary element of the charge for the prosecution to prove that the person knew, or ought to have known, the offence was occurring or was reasonably likely to occur. If an operator commits a breach, a maximum fine of $25,000 will apply and this is an increase from the previous maximum fine of $10,000. This offence recognises the role that operators play in setting the requirements for drivers and it places an added obligation on operators to encourage them to abide strictly by the law.

Examples of influencing behaviours
Behaviours that could lead drivers or operators to breach the rules or laws include:
• Causing or influencing a driver to exceed speed limits
• Causing or influencing a driver not to comply with worktime or rest time requirements
• Causing or influencing a driver not to comply with logbook requirements (including a failure to maintain a logbook or falsifying logbook records)
• Causing or requiring a driver to operate a vehicle that exceeds its maximum gross weight.

Extension of search warrant provisions
Section 6C of the Land Transport Act also extends the provisions for the issuing of search warrants so that the police are able to apply for search warrants for alleged breaches of the chain of responsibility provisions. That means a search warrant could be issued in order to obtain evidence relating to commercial vehicle drivers speeding or breaching work-time limits, or commercial vehicles being dangerously overloaded. We‘ve all heard of cases where employers or companies that engage truck companies set unrealistic schedules for drivers, causing them to speed or breach their work hours in order to meet contractual requirements. This is a totally unacceptable practice and it is also illegal. So, it‘s not surprising that the police are likely to pursue those who breach the law more vigorously because this will be another tool they can utilise.

The law has always recognised the need for employers and businesses that use transport operators to act in a responsible manner, so this legislation does not place extra responsibility on them. However, when enquiries needed to be made into breaches, particularly those that involved the alleged actions of a third party, it was difficult for the police to obtain evidence of the offending. An example of a third party is a freight forwarder who is a transport operator‘s client rather than the employer of a driver. However, under the chain of responsibility legislation, the ability to apply for a search warrant changes this and will hopefully ensure that unrealistic demands are not placed on transport operators or drivers. The same requirements that the police must currently satisfy when seeking a search warrant will apply to these search warrants.

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.