NHVR releases regulatory advice on the meaning of ‘reasonably practicable’

According to the Heavy Vehicle National Law (HVNL), a party in the chain of responsibility for a heavy vehicle has a primary duty to ensure, so far as is reasonably practicable, the safety of their transport activities relating to the vehicle.

So what does ‘as far as reasonably practicable’ mean and how can you ensure you are meeting your primary duty? The National Heavy Vehicle Regulator (NHVR) provides clarification in their latest regulatory advice.

How is reasonably practicable defined in the HVNL?

The HVNL defines ‘reasonably practicable’ as “that which is, or was at a particular time, reasonably able to be done in relation to the duty, weighing up all relevant matters.” These relevant matters include:

• the likelihood of a safety risk, or damage to road infrastructure, happening
• 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.

No single matter is determinative and in assessing ‘reasonably practicable’, these factors are considered in their totality. We break down each of these relevant matters below.

Likelihood and the degree of harm

The first two matters are essentially the legal embodiment of a risk assessment. Therefore, the first step of any risk assessment is to identify the risks in your transport activities. Then, for each of these identified risks, ask yourself:

• what is the likelihood of this occurring?
• if the event does happen, what would be the degree of harm caused?

The answer to each of these questions will vary depending on the risk and therefore, each risk will need to be dealt with differently, depending on the answers. For example, the likelihood of something occurring might be high but the consequence might be low. How you deal with this is going to be extremely different from if the likelihood of something occurring is low but the consequence is high. The test for both of these matters is objective, not subjective.

What is known or what you ought to know

This element of reasonable practicability sets the expectation that you will research your risks and how you can eliminate or minimise them in your transport activities. What is generally known about the risk in the industry is considered by this part of the definition. Accordingly, research into industry standards and attendance at forums and events where the industry can share new ideas and ways to manage safety are good starting points. You could also look at the Registered Industry Codes of Practice (RIPS), such as the Master Code, which are admissible in court as evidence as to what is reasonably practicable in the relevant industry.

Availability and suitability

This requires you to consider whether the ways to manage risks are available and suitable to your transport activities and business. A measure is ‘available’ if it is:

• provided on the open market
• possible to manufacture it.

If a measure is not available to you or not suitable for your circumstances, then it would not be reasonable to implement it, and you may have to find other measures to eliminate a risk – or to minimise it to an acceptable level.

Cost

When assessing whether costs are proportionate, the NHVR regulatory advice states that the following can be considered:

• initial outlays – such as, manufacturing costs and shipping
• installation costs to ensure the measure is properly implemented into your business
• maintenance costs to ensure the measure remains effective
• training to provide employees with the knowledge and skills to operate and implement the measure – for example, induction and scheduled refresher training
• work hours lost to training
• costs to update policies and procedures
• operational costs to ensure the measure can function properly.

If there are multiple measures that achieve the same result in eliminating or minimising a risk to an acceptable level, then you can choose the most cost-effective option.

Assessing whether the cost of implementing a measure is proportionate is an objective test. Choosing a low-cost option that is less effective on the sole basis that it is cheaper is unlikely to be a reasonable way of eliminating or minimising risk, especially if the degree of harm is significant. Due to the nature of the heavy vehicle industry and the risk of death or serious injury, there is a high threshold for what is considered a reasonable and proportionate expenditure.

Key takeaway

According to the latest NHVR advice, reasonably practicable means what should be done to ensure safety, weighing up all the relevant factors we have described above. It is a question of proportionality – ensuring the measures used to eliminate or minimise the risks are proportionate to the likelihood and degree of harm.

If you have any questions about this article, please get in touch with partner Nathan Cecil or a member of our Transport, Shipping & Logistics team below.

• This article was originally published in CoR Adviser. The article is © 2023 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nathan Cecil

Melanie Long

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