1 update mar 14 > issue 62 in this issue page 1 page 2 page 3 page 4 page 5 page 6 page 7 Road Safety Newsletter - Introduction The Journey Claim Heavy Vehicle National Law Penalties Framework Review PCYC - Gymnastics Donation Driver Fatigue - An Accident Waiting to Happen It s the Law Random Drug Testing Profile - Caitlin Roberts What is the Road Safety Remuneration Tribunal? Our March Chuckle Distracted from a Safer Road Profile - Kendell Bocos page 8 Sarah Smith - Admission as a Solicitor Would you like to receive your letter by ? Simply send an with Subscribe in the subject line to Liability limited by a scheme approved under professional standards legislation I watched the Four Corners episode on safety concerns surrounding the long haul trucking industry on Monday 3 February If you did not see this episode and if you are interested in road safety then I would strongly suggest that you have a look at the episode which is able to be seen on the Four Corners website which is es/2014/01/30/ htm. What was disturbing about watching this show was the sense of déjà vu that came over me given that it is the same old story and one that we have all seen many times. Nevertheless, the problems associated with road safety and the long haul trucking industry continue. At the end of the food chain is the truck driver who is forced to make ends meet by driving as much as possible which inevitably leads to fatigue and accidents. In order to ensure that truck drivers receive a basic level of income the Road Safety Remuneration Tribunal has been established. The current Government and its Minister Eric Abetz are currently undertaking a review of this Tribunal and it may be abolished. The logic being that large stakeholders have lobbied the Government and the view put forward to support the abolishment of the Tribunal is that there is no link between pay and driver fatigue. I was appalled by this opinion which clearly is not correct. It is nothing more than a convenient statement to support the abolishment of the Road Safety Remuneration Tribunal which has been set up to ensure that truck drivers earn sufficient money so that Road Safety Newsletter Introduction By Andrew Telford Andrew Telford they do not have to take drugs and falsify log books and drive their trucks for up to 17 hours per day 6 days a week in order to make a sufficient living to pay their bills. I have invited our professional staff to consider relevant issues and topics relating generally to road safety. Hopefully there might be something in this month s letter that is of interest to you. The fact is that fatigue and accidents are a common occurrence in our region given that many people who live in Mackay and the Whitsundays travel to and from the mining towns on a daily basis. Driving fatigued is just as dangerous as driving whilst under the influence of alcohol. It is a very real issue and one that cannot easily be solved. The message from the Four Corners episode is that people are being killed by truck drivers who are being forced to work beyond their physical capabilities. The large companies who force drivers to do this are simply not accountable. We need to encourage our law makers to pass laws that regulate the trucking industry to preserve the safety of road users.
2 2 Macrossan & Amiet Leading the Way The Journey Claim Workers Compensation, Journey Claims, Personal Injury Claims By Georgina Paterson The Workers Compensation and Rehabilitation Act 2003 (Qld) allows employees to lodge a statutory claim when injured travelling (directly*) to or from work. Known as a journey claim, if you are injured while operating a motor vehicle, motorbike, bicycle or even injured whilst walking to work then you may be entitled to apply for workers compensation to cover you whilst you are unable to work as a consequence of your injury. Although there has been discussion over the last several months regarding a number of WorkCover reforms including the Queensland State Government s proposal to scrap journey claims it has ultimately been decided that journey claims in Queensland will not be abolished. To qualify for a potential journey claim you need to be: 1. An employee You need to be an employee and if you are not a direct employee and work under your own ABN, or a Labour Hire company, then your position needs to be qualified, which the legislation provides for. 2. Outside the worker s premises border line The requirements state that the injury must take place outside the worker s premises border line and whether the accident occurs on the way to or from work, during work hours on approved duties or between jobs (i.e. travelling from site to site). For example, in the case of Johnston v Q-Comp (C/20012/2) a nurse who had injured herself falling down her home s front stairs could not claim compensation as the journey to work had not begun. However, in Kennerley v Q- Comp (C/2012/18) a flight attendant traveling to renew his work visa outside of work hours was compensated for the injuries he suffered. 3. *Substantial deviation It is not always clear what injuries are compensable and the current exception in the legislation is that injuries will not be compensable if they were sustained during a substantial deviation in the course of travel. The reason for the deviation, time taken and distance travelled are all taken into account by a court in determining whether there has been a substantial deviation. This means that the issue will need to determine on a case by case basis depending on the facts. The Four Corners episode on safety concerns surrounding the long haul trucking industry describes an incident whereby a man was travelling home from work and stopped to help another man change a tyre. Both men were killed by a truck driver who fell asleep at the wheel after driving for almost 13 hours straight. The man s wife was denied workers compensation benefits because once her husband stopped to help the other man it was deemed that he substantially deviated from his journey home, disentitling his estate to benefits. Georgina Paterson 4. Medical Certificate In order to claim workers compensation benefits you will be required to visit a doctor so that your injuries can be diagnosed and treated and also so that you can obtain a Workers Compensation Medical Certificate, which is required when lodging a claim. It is very important that you seek legal advice and assistance from a personal injury lawyer as you may be entitled to a Common Law claim as well as a Motor Vehicle Accident claim which is beneficial for you, your family and your future. Some of the facts 1 : Based on Australian workers compensation data, workrelated road cash injuries are estimated to cost approximately $500 million per year; Work-related road crashes account for almost half of all occupation fatalities in Australia and 13% of the national road toll; Safe Work Australia related report in 2012 on work-related traumatic injury fatalities for the period During this one year period, of the total 337 work-related fatalities (including community fatalities), 216 people were injured at work, 79 travelling to and from work and 42 were bystanders. 1 Carrs-Q, State of the Road: Work-related Road Safety Fact Sheet, 2012
3 3 Macrossan & Amiet Leading the Way Heavy Vehicle National Law Penalties Framework Review Traffic Offences, Penalties By Lenin Volney In September 2011, the Standing Council on Transport and Infrastructure (SCOTI) was established which brings together Commonwealth, State, Territory and New Zealand Ministers with responsibility for transport and infrastructure issues, as well as the Australian Local Government Association. SCOTI directed that nationally consistent penalties be set in the Heavy Vehicle National Law. The intent was to promote consistency, equity and fairness in enforcement across the country. The Heavy Vehicle National Law Penalties Framework Review Consultation Draft (HVNL) was released in January This Review, produced by the National Transport Commission seeks input from the industry. The aim is to achieve consistency in the penalties regime and compliance and enforcement under the HVNL. For example, should a trucker be solely liable if he/she is instructed to drive a vehicle that he/she knows is faulty? Why should the same offence have differing fines because of where the offence occurred? What would the corporate contribution be for any penalties? It seeks to ask questions and provide submissions on the following: Relativities between laws For example: are the penalties attaching to heavy vehicle offences proportionate to the penalties attaching to light vehicle offences and commensurate with offences attaching to other transport laws such as rail. Relativities within the law The review will consider if the penalties attaching to various offences in the HVNL are internally coherent and consistent, particularly with regards to mass, dimension, loading, speeding and fatigue offences. Maximum penalties For example: whether the maximum court-imposable maximum penalties attaching to the offences are fair and reasonable with regards to broader questions of road safety and equity, and to the actual level of penalty imposed by the courts. Lenin Volney Use of infringements For example: whether the offences are appropriate with regard to road safety and equity considerations. Corporate multiplier For example: it is fair and reasonable to attach the corporate multiplier of fines to all companies, regardless of size. Executive Officer Liability For example: is it fair and reasonable to attach to executive officer liability. Although this review will not necessarily change the law, it will provide more clarity so that the drivers will know the repercussions of their breaching the law. Hopefully, the Executive Officer Liability will hold responsible those decision makers for offences where liable and will effect a change in the industry where it seems the only ones held responsible have been those on the front line driving. - pcyc Gymnastics Donation Macrossan & Amiet Solicitors director Andrew Telford, and Sergeant John Dickinson, were happy to see gymnastics squad members Skye Ovari, Josie Bates, Brooke Smith, (back) Shelly Askew and Tia Gibbs making use of the new $4800 vaulting table which was purchased with donated funds from the Macrossan & Amiet Foundation. Proudly supporting the local community.
4 4 Macrossan & Amiet Leading the Way Driver Fatigue - An Accident Waiting to Happen By Caitlin Roberts Driving, after being awake for 17 hours, leads to a driving ability similar to that of a driver with a blood alcohol concentration of 0.05% hours awake leads to an ability similar to a driver with a blood alcohol content of 0.15%. It is of no surprise then that fatigue is one of Queensland Police s fatal four alongside speeding, drink driving and not wearing a seat belt. What is fatigue? Fatigue is a general term used to describe the feeling of being tired, drained or exhausted. The signs of fatigue when driving are broad and include: Boredom; Changes in speed; Poor concentration; Restlessness; Yawning; Drowsiness; Head nodding; Microsleeps; Drifting in the lane or over lane lines. As a driver, fatigue can result in poor judgment, a slower reaction time and decreased driving ability such as the ability to properly control the vehicle. What impact does driver fatigue have on our region? An increased number of Mackay residents, as part of their employment, now drive to and from our nearby mine sites. The contributory factors to fatigue place drive-in-drive-out ( DIDO ) workers at a high risk of driver fatigue as many of the factors are relevant to their lifestyle. The contributory factors include: Insufficient or poor quality sleep; Long periods awake; Long commute times; Disruption of the daily cycle of waking ie driving when you would normally be asleep; Sustained mental or physical effort; Inadequate rest breaks; Stress; Environmental stresses such as heat, noise, vibration, climate; Illness or pain; Lifestyle/eating habits. Research suggests that those people most at risk of a crash caused by fatigue are rural drivers, young male drivers, shift workers, those with long work hours, and commercial drivers. In Queensland, the risk of dying in a fatigue-related crash in rural areas is 13.5 times higher than in urban, built up areas. This highlights again the high risk our DIDO workers face on our road. The impact driver fatigue has on our region is further stressed in the 2011 report of the Central Queensland Coroner relating to two separate fatal road accidents that occurred in the Central Queensland area, both involving miners driving home following work. Fatigue was found to have been a potential factor in both accidents. Of the 24 recommendations made, 19 focussed on fatigue related issues. It is believed that fatigue contributes to 20-30% of all deaths on Australian roads and may even reach 40-50% in particular crash types such as single vehicle crashes. Unlike the other major causes of motor vehicle accident driver fatigue is difficult to detect so its full effects may be underestimated. How can you and your family stay safe? 1. If you are feeling tired, do not begin a drive. 2. Prior to travelling you should ensure you get enough sleep. On average, most people need between 7-9 hours per night. 3. After a full day s work you should avoid driving. The risk of Caitlin Roberts an accident increases with the length of your shift. The risk generated by two 12 hour shifts is comparable to the risk of six 8 hour shifts. 4. Be aware of the potential effects of any medication you are taking as some may cause drowsiness. If you notice any of the signs of fatigue there are a number of strategies which may help: Take frequent breaks, a rest break every 2 hours is best; Stop for a short min nap. Ensure you allow time to recover from your sleep before continuing; Have a caffeinated beverage; Share the driving with other people. As fatigue is difficult to detect and enforce, it is up to the individual to ensure that they are not driving whilst fatigued. The warning signs of fatigue should not be ignored as you have a limited ability to predict when you will fall asleep. Research is being conducted into ways of monitoring and detecting fatigue amongst drivers, with car manufacturers now introducing technology that is able to warn of inattentiveness and drowsiness. This technology is also able to tell the driver how long it has been since they last had a rest break. The outcomes of accidents resulting from fatigue are often devastating as fatigued drivers make no attempt to avoid or prevent the crash from occurring. Driver fatigue is particularly dangerous as it affects not only DIDO workers but everyone in our community.
5 5 Macrossan & Amiet Leading the Way It s the Law Random Drug Testing Criminal Law, Traffic, Drug Testing By Darren Robinson The Australian community is concerned with the number of people that are driving vehicles while under the influence of drugs and a particular focus is on drivers of heavy trucks and buses. From 1 July 2012 to 1 June 2013 there were 1,274 road deaths in Australia and 192 crashes involving heavy trucks or buses. From the 192 crashes there were 231 deaths involving heavy trucks or buses. The Government at both Federal and State levels have spent significant money on research and funding to assist police in detecting drivers who drive under the influence of drugs. In Queensland from 2007 to 2012 the police commenced enforcement action targeting drug driving: 80,624 roadside drug tests performed; 2,129 positive detections on drivers (detection rate of 2.7%); Methamphetamine was detected in over 40% of the drug drivers; and Drug detections involving drivers of heavy vehicles is 12.4%. As you can see, the drivers of heavy vehicles are overrepresented and have a higher detection rate of drug driving (12.4%). This figure is concerning as heavy vehicles only comprise 4% of all vehicles registered in Queensland. In Queensland there is a zero tolerance for driving under the influence of illegal drugs. Police have the power to intercept and perform random roadside drug tests. This authority is contained in the Transport Operations (Road Use Management) Act 1995, section 80(2). Police also have the power to obtain a saliva sample from any person who has been involved in an accident that resulted in an injury or death to a person or damage to any property. This authority is contained in the Transport Operations (Road Use Management) Act 1995, section 80(2A). The police roadside drug testing can detect the presence of: 1. Tetrahydrocannibinol this is the ingredient that provides the Darren Robinson euphoric feeling in cannabis, marijuana, resin or cannabis oil; 2. Methamphetamine commonly known as speed or ice; and 3. MDMA the active ingredient in ecstasy. We are regularly asked what is the accepted tolerance level with truck drivers who use drugs or may have drugs in their system when driving heavy vehicles. In short, there is no acceptable level and if you are detected with any illicit drugs in your system then the police will charge you. A first offence carries a penalty of up to $1, and you may be disqualified from driving for up to 9 months and may not be eligible for a restricted (worker s) licence. As police gather intelligence about drug driving offenders it is clear that drivers of heavy vehicles will continue to be targeted. profile - Caitlin Roberts Caitlin Roberts commenced with Macrossan & Amiet in October 2013 as a Trainee Solicitor. She grew up in the seaside towns of Emu Park and Yeppoon where she attended St Ursula s College before moving to Brisbane to complete her Bachelor of Laws and Bachelor of Business (Accounting) degrees at the Queensland University of Technology. During University Caitlin worked in a family law firm and in insurance recoveries before relocating to Darwin in In Darwin Caitlin worked as a Logistics Coordinator for a bulk fuel and chemical storage facility, while completing university externally, and spent her spare time exploring everything the Northern Territory outback has to offer, at every possible chance saw Caitlin back in Brisbane and back in insurance recoveries while she finalised her degrees. After experiencing the exciting and busy life of the city, Caitlin began exploring opportunities to move back to regional Queensland as she was unsure the hustle and bustle was for her. Caitlin is enjoying the lifestyle Mackay has to offer and outside the office you will find her swimming, reading, spending time with family and friends and being the designated skipper on weekend fishing trips. Caitlin feels lucky to have been given the opportunity to build on her legal skills and knowledge at Macrossan & Amiet Solicitors. Proudly supporting the local community.
6 6 Macrossan & Amiet Leading the Way What is the Road Safety Remuneration Tribunal? Employment By Lenin Volney The Road Safety Remuneration Tribunal (RSRT) is an independent national body with functions relating to the road transport industry. It is effectively the Trucking Industry Fair Work Tribunal. It can apply to road transport drivers, employers or hirers of road transport drivers, and participants in the supply chain in relation to road transport drivers. The RSRT s functions include: making road safety remuneration orders; approving road transport collective agreements; dealing with certain disputes relating to road transport drivers, their employers or hirers, and participants in the supply chain; and conducting research into pay, conditions and related matters that could be affecting safety in the road transport industry. The end goal of the Tribunal is to adjudicate and research into ways of making the road transportation industry more economical, sustainable, and safe. The tribunal is not just looking into creating a scheme that economically benefits road transport drivers, but also considers the underlying assumptions on which the road transport industry operates. For example, ensuring that road transport drivers do not have remuneration-related incentives to work in an unsafe manner. You may be hearing more about this organisation in the coming months. In December 2013, the Tribunal released its first road safety remuneration order (RSRO) after consultation with industry stakeholders such as Coles Supermarkets Australia Pty Ltd, Linfox Australia Pty Ltd, Toll Holdings Limited, Transport Workers Union of Australia and the National Union of Workers among others. This RSRO is titled Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 and it applies to road transport drivers employed or engaged in: a) the road transport and distribution industry within the meaning of the Road Transport and Distribution Award 2010 as in force on 1 July 2012, in respect of the provision by the road transport driver of a road transport service wholly or substantially in relation to goods, wares, merchandise, material or anything whatsoever destined for sale or hire by a supermarket chain; or Lenin Volney b) long distance operations in the private transport industry within the meaning of the Road Transport (Long Distance Operations) Award 2010 as in force on 1 July The RSRO sets out requirements regarding: Payment time now within 30 days of a received invoice for contractor drivers; Written contracts for road transport drivers may be in an electronic format; Contracts between supply chain participants; Safe driving plans for drivers undertaking long distance operations in a motor vehicle with a gross vehicle mass (GVM) of more than 4.5 tonnes; Training in work health and safety; Drug and alcohol policies; and Dispute resolution and adverse conduct protection. This RSRO commences on 1 May 2014 and lasts for four years. The stakeholders will now have just two more months with which to get their processes, procedures and contracts ready. Our March chuckle: We like to have a laugh at ourselves... It can be hard keeping a straight face as a court reporter... ATTORNEY: The youngest son, the 20-year-old, how old is he? WITNESS: He s 20, much like your IQ.
7 7 Macrossan & Amiet Leading the Way & profile Distracted from a Safer Road Traffic Offences By Kendell Bocos The behaviour of road users has contributed to increasing safety concerns to other drivers. In Queensland, common dangers on the road can be attributed to drink driving, speeding, fatigue and driver distractions. Therefore to improve road safety, caution should be taken while operating a motor vehicle so as to reduce traffic incidents and facilitate safer roads. In Queensland, driver distraction is a key contributing factor in many vehicle accidents and is estimated to account for approximately one quarter of car crashes. According to RACQ, the most common distractions are: 1. Driving while adjusting stereo settings. 2. Driving while eating/drinking. 3. Driving while using a mobile phone. 4. Driving while using the GPS navigation system. 5. Driving while smoking. The Queensland road rules have taken a robust approach in improving driver behaviour and road safety. This is because distractions may affect driver behaviour by: impairing concentration; delaying reaction speeds; reducing awareness; obstructing control of the vehicle; and encouraging risky decisionmaking. Use of mobile phones In traffic crashes, the use of a mobile phone is a common cause and accounts for approximately 7% of distraction-related crashes. Despite the recognised danger that mobile phones introduce, it is estimated that 61% of Australian drivers aged between 18 and 24, and 32% of drivers over the age of 25, use their hand-held mobile phone while driving. Under the Queensland road rules, it is illegal for the driver of a vehicle to use a hand-held mobile phone while the vehicle is moving, or is stationary but not parked. This means that a driver cannot talk, text or use any other function on a hand-held mobile phone while driving. By contrast, a driver is permitted to use a hands-free mobile phone provided they are not a learner driver, P1 provisional licence holder or probationary licence holder under the age of 25 years. If you are caught using a handheld mobile phone while driving, you may be charged with an offence. This may result in accumulating demerit points, a fine or even losing your licence. Driving without proper control With the exception of mobile phones, most distractions are not an offence in their own right. However under the road rules, it is an offence if a person fails to have proper control of a motor vehicle while driving. This offence occurs where the driver does an act that may remove or limit their ability to control the vehicle and is common in situations where a driver is using a mobile phone, or simply eating. An example of this occurred in Albany Creek where a man was fined $250 after he was Kendell Bocos caught eating hotcakes with no hands on the wheel. Careless driving If a person is distracted while driving, this may mean that they are driving without due care and attention. This offence is common in circumstances where the driver does not follow the road rules as a consequence of being distracted. This may include failing to indicate when turning, or crossing double lines. To avoid this, it is important that drivers follow the road rules and concentrate while driving. Should a driver contravene this offence, the Court may impose a fine, disqualify the driver s licence, or even sentence the driver to a term of imprisonment. Tips for safer driving The safest method of driving is to simply concentrate and avoid using mobile phones and other similar devices until you have stopped driving. If completing a specific action or using a handheld mobile phone is necessary, you should: pull over and legally park the vehicle safely; respond to any calls or texts after you stop driving; plan ahead before you begin driving; or ask a passenger to respond, or complete the task on your behalf. Kendell Bocos has been a Trainee Solicitor with Macrossan & Amiet since January Born and raised in Mount Isa, Kendell attended high school at the Good Shepherd Catholic College until year 10. Prior to completing year 10, Kendell relocated to Townsville with his family where he attended The Cathedral School for the remainder of his high school years. Realising his passion, Kendell went on to study Law at James Cook University. In 2013, Kendell completed his Bachelor of Laws with Honours and has since relocated to Mackay to commence his Traineeship with Macrossan & Amiet. In his spare time, Kendell enjoys playing golf and relaxing with family. Proudly supporting the local community.
8 8 Macrossan & Amiet Leading the Way If you have any queries about any of the articles in this letter, please feel free to or phone (Mackay) or (Whitsundays) to speak directly with the author of the article. Contact us For further information about the services offered by Macrossan & Amiet Solicitors please contact your nearest office: Mackay 55 Gordon Street Mackay QLD 4740 Ph Fax Whitsunday Suite 4 Whitsunday Business Centre 230 Shute Harbour Road Cannonvale QLD 4802 Ph Fax Sarah Smith - Admission as a Solicitor Sarah Smith of our Cannonvale office was admitted as a solicitor of the Supreme Court of Queensland in Townsville on Friday 7th February Sarah s parents are Lex and Gayle Hinschen of Proserpine where Sarah attended the local State High School graduating in Sarah studied for her Law degree at Bond University and graduated in Sarah married Brett in 2009 and in 2010 completed the Practical Legal Training course through the Queensland University of Technology whilst working at the Gold Coast firm Milne Lawyers. Sarah started working as a trainee solicitor at Macrossan & Amiet s Cannonvale office in 2011 having performed work experience there during her first year of university studies in Whilst completing her training at Macrossan & Amiet, Sarah has also managed to study secondary teaching part time and she and husband Brett had their first child, Andrew Telford and Sarah Smith at the Supreme Court in Townsville immediately after Sarah s admission Indianna, born in April Sarah is now pregnant with her second child but is keen to recommence her legal career hopefully in Macrossan & Amiet s Cannonvale Director, Andrew Telford, travelled to Townsville to move Sarah s admission and expressed his relief that Sarah had persevered and gained her admission to the delight of her family and friends and work colleagues alike. Sarah is interested in family law and has considerable experience in commercial leasing as well as wills and estates. Well done Sarah! Proserpine 18A Chapman Street Proserpine QLD 4800 Ph Fax Macrossan & Amiet Charitable Foundation financially supporting local charities... The Foundation has already made grants, assisting local charities, of over $352, Consider making a donation to the Foundation. No administration costs are met from the capital of the Foundation and are met by the legal firm Macrossan & Amiet. All donations to the Macrossan & Amiet Charitable Foundation are tax deductible. Should you wish to make a donation, please do not hesitate to contact the Secretary, Mr Stuart Naylor on (07)