Loads and the law06 October 2011

Case law around operating commercial vehicles outside legal weight limits demonstrates clearly that the problem is not only one of truck welfare, but also operators' and drivers' livelihoods. Andrew Woolfall provides advice

According to figures recently released by VOSA, overloading remains one of the top causes of roadside prohibitions issued by its enforcement staff. Axle overloading is one of the primary problems that the enforcement authorities face. The increase, over recent years, of permitted gross and train weights has seen more vehicles exceeding available space before overall weight limits are exceeded.

Yet many vehicles suffer problems with regards to load distribution. Practices such as securing the entire load up against the vehicle headboard or failing to reposition loads on multi-drop deliveries can lead to problems with specific axles. And developments in enforcement technology mean infringements are easier to spot.

While fair competition may be one of the primary reasons for preventing operators exceeding permitted gross vehicle weights, road safety is the primary issue when it comes to axle overloads. The safe handling of vehicles, and specifically steering and braking systems, plus damage done to the road surface and the associated costs of repair, mean that drivers and operators face stiff penalties, if prosecuted.

Where the enforcement authorities detect an overloaded axle, at best the vehicle might receive a prohibition notice, with no formal action being taken against driver or company. However, such a prohibition notice does go against the record kept by the Traffic Commissioner for that operator and, if too many of these prohibitions are received, this may result in the operator being asked to explain the background, as well as the systems and procedures in place to prevent offences being committed. At worst, it may result in a public inquiry hearing that sees regulatory action being taken against the operator's licence – meaning a curtailment of numbers, a suspension of the licence or even it's revocation.

Paying the price
In the vast majority of cases, the detection of axle overload results in some form of criminal sanction. This might be a fixed penalty notice, issued to the driver at the roadside, or a prosecution brought against driver and operator before the courts. Most proceedings will be for simple overloading offences and result in a financial penalty, though gone are the days when such penalties are relatively small amounts – fines above £1,000 are becoming common, as magistrates are encouraged to look more at a defendant's ability to pay, rather than concentrate on the level of culpability alone.

Where once one might expect to persuade a court to impose a discharge for an axle overload offence, now clients have to be advised that magistrates will be thinking in terms of hundreds of pounds, if not more. And that appli8es, even when the operator was not present when the vehicle was loaded and it might have been difficult for a driver to detect the infringement.

However, more substantial axle overloads, which cause a true danger, can be treated more seriously. In some circumstances, we see drivers having penalty points endorsed on their driving licences or, at the very worst, disqualification and potentially imprisonment. If the axle overload causes the vehicle to be 'obviously dangerous', the use of it in such a condition could also see a driver being prosecuted for dangerous driving, which carries a mandatory ban of 12 months and, if there was a fatal accident resulting, a high probability of a prison sentence. In such circumstances, the operator could also face similar types of offence and sanction.

New technology
Technology has been developed to assist the enforcement authorities in detecting axle overloads. While random stops still lead to offences being detected, and simple observation is one of the most reliable tools used by the police, VOSA sites, located by motorways and main arterial roads, are now being equipped with 'weigh in motion' sensors (WIMs) that weigh the vehicle while travelling on the highway.

Sensors built into the road weigh individual axles with a high degree of accuracy. These devices are linked to automatic number plate recognition cameras, which then check VOSA and DVLA databases to confirm the permitted weights and, if the vehicle is found to be overloaded, automatic notifications are sent to VOSA patrol cars. These then direct the vehicle to an authorised check site.

Whilst the WIMs system is only used to detect a potential overload and not used for the basis of any prosecution, once the vehicle is on the VOSA site it is then weighed on calibrated equipment. This often involves the use of a dynamic axle weighbridge, which has a statutory presumption of accuracy to +/-150kg per axle.

Split weighing
Although it can often be difficult (though not impossible) to defend prosecutions where the vehicle has been check weighed using a dynamic weighbridge, the other common form of axle weight check (and one frequently used by the police or agencies, such as Trading Standards) involves a process known as 'split weighing'. This uses a standard, conventional, weighbridge and involves weighing individual axles separately when only a small part of the vehicle is placed on the plate.

This procedure can be inaccurate, and a code of practice has been developed to ensure that results are reliable. The codes require that sites used for the purpose of split weighing be properly certified as fit for purpose, by local authorities. Many are not and any operator who feels that the weights presented by the enforcement authorities are inaccurate should seek specialist legal advice.

Many prosecutions are brought based upon evidence gathered on such devices and often the weighbridges are not authorised for this purpose. In fact, the writer has seen sites being used for prosecution purposes even where notices explicitly forbid 'split weighing'.

Similarly, some authorities use portable weigh pads to detect axle overloading offences, and again there are strict guidelines as to the location that such tests can be carried out. Notwithstanding the fact that these devices can be accurate, if the relevant codes of practice are not complied with, the pads can give misleading results. So, again, proper legal advice should be sought.

One local authority was renowned for using such devices until it lent them to the local police force, only for the police to weigh and prosecute a council vehicle. The first line of the council's defence – the pads were not accurate for weighing axles.

At the end of the day, axle overloading is an issue that can be eliminated through a number of means. Loads should be properly assessed in relation to the vehicle they are to be carried upon. The Departments for Transport has produced a code of practice, 'Safety of Loads On Vehicles', and this provides invaluable advice to operators on a number of loading issues, including load placement, distribution, security and avoiding axle overloads.

Loading staff and drivers should be properly trained so that they are aware of axle issues. In particular, drivers should be capable of recognising when axles might be overloaded. Tell-tale signs include changes to the way the vehicle handles or brakes, or even how the body of the vehicle sits above the wheels. Operators should also make drivers aware of the location of suitable weighbridges that are capable of handling individual axles. In years gone by it used to be part of the writer's standard mitigation, when appearing in court, that there were very few publicly available dynamic weighbridges to assist drivers. However, this situation is changing.

Operators should also consider investing in their own equipment and facilities. If a new weighbridge is to be installed, consider purchasing a dynamic type, rather than a standard, conventional plate. Thought should also be given to equipping vehicles with on-board weighing systems that can alert drivers to individual axle overloads.

If axle overloading remains a substantial issue then operators are also encouraged to conduct their own random weight checks. It is not uncommon within the utilities industries for large fleet operators to have their own portable weigh pads, and to set up their own random checks to ensure compliance. Just as random audits of the quality of drivers daily defect reports are encouraged by Traffic Commissioners, where operators have vehicle maintenance issues, so similar random weight audits are encouraged for operators who regularly collect overloading prohibitions.

Axle overloads can be difficult to detect, from the driver's perspective, and can be the result of a load being no more than a few inches away from the correct position. However, drivers and operators can take steps to prevent this occurring and to avoid regulatory and criminal action. Operators are obliged as a result of undertakings on their 'O' licence to implement proper arrangements to prevent the use of overloaded vehicles. This includes axle overloads. Traffic Commissioners and the court are now expecting sophisticated ways of tackling the issue and, more often than not, the excuse "It's not my fault" is not being accepted.

Andrew Woolfall is with Backhouse Jones solicitors.

Andrew Woolfall

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