New South Wales Consolidated Acts

ROAD TRANSPORT (GENERAL) ACT 2005 - SECT 71

71 Recovery of losses for provision of inaccurate container weight declaration

(cf model provisions, s 108)

(1) This section applies where:

(a) a container weight declaration has been provided as required by this Act, and

(b) the declaration contains information about a freight container:

(i) that is false or misleading in a material particular by understating the weight of the container, or

(ii) that is otherwise false or misleading in a material particular by indicating that the weight of the container is lower than its actual weight, and

(c) a breach of a mass requirement occurred as a result of the reliance, by an operator or driver of a vehicle or combination, on the information in the declaration when transporting the container by road (whether or not enforcement action has been or may be taken in relation to the breach), and

(d) the operator or driver of the vehicle or combination:

(i) had at the time a reasonable belief that the vehicle or combination concerned was not in breach of a mass requirement, and

(ii) did not know, and ought not reasonably to have known, at the time that the minimum weight stated in the declaration was lower than the actual weight of the container, and

(e) a person suffered loss as a result of the provision of the declaration.

(2) Any person (the "plaintiff") has a right to recover under this Act, from the responsible entity for the freight container, the monetary value of any loss incurred by the plaintiff and consequent on the provision of the container weight declaration.

(3) Losses that may be recovered under subsection (2) include any or all of the following:

(a) any fine, infringement penalty or other penalty imposed on the plaintiff under an Australian applicable road law,

(b) any fine, infringement penalty or other penalty imposed on an agent or employee of the plaintiff under an Australian applicable road law and reimbursed by the plaintiff,

(c) any loss incurred from delays in the delivery of the freight container or any goods contained in it or of other goods,

(d) any loss incurred from spoliation of or damage to the goods,

(e) any loss incurred from the need to provide another vehicle or combination, and any loss incurred from any delay in the provision of another vehicle or combination,

(f) any costs or expenses incurred in weighing the freight container or any of its contents or both.

(4) The plaintiff may enforce that right by bringing proceedings in a court of competent jurisdiction for an order for payment of the monetary value of the loss.