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The weighing of vehicles, 2
IN THE LAST article it was established that it was a good defence to a charge of overloading to prove that at the time the vehicle was stopped it was on its way "to a weighbridge which was the nearest available one to the place where the loading was completed for the purpose of being weighed, or was proceeding from a weighbridge to the nearest point at which it was reasonably practicable to reduce the weight to the relevant limit without causing an obstruction on any road".
As far as I know the term "nearest available weighbridge" has never been the subject of a stated case and it must be assumed that the everyday meaning must be taken. For example, the defence could not be used successfully if a weighbridge, owned by the lorry operator, which was ten miles away, were used instead of another one, let us say owned by the local council, which was only a half a mile away.
At night most weighbridges are closed; the term "nearest available" might mean one which is 150 miles away from the loading point. One would think that to travel this distance with a possible overload would be unreasonable and a court would expect the driver to park the vehicle until the following morning when the weighbridges in the immediate vicinity were open.
One could argue, of course, that at that time the one 150 miles away was "the nearest availableand it would be for a court to decide if this is the way the law should be interpreted.
When a driver is coming from a weighbridge having been found to be overweight, to avail himself of the second part of the defence, he must be travelling to the nearest practicable unloading point. How far he will have to-travel will depend on the
type of load and the locality.
I heard recently of the great difficulty a driver experienced when a tipper loaded with fish was found to be overweight. The fish was being taken to a factory to be turned into fertiliser; what can you do with a ton of stinking fish which has to be off-loaded?
The second defence to a charge of overloading provided by Section 40 of the Road Traffic Act 1 972 is to prove, where' the limit is not exceeded by more than five per cent, that the legal limit was not exceeded at the time of loading and that since that time no person has made any addition to the load. This covers the case of a weight increase caused by heavy rain or snow, or where grain in a bulk carrier moves forward so that the front axle becomes overloaded.
Whichever defence is brought forward, it is necessary to prove the fact to the court. This means calling evidence to prove that the vehicle was within the limit when it was loaded. This could be done by calling the weighbridge attendant who weighed the vehicle to produce the weighbridge ticket he made out at the material time.
If the defence is that the vehicle was travelling to the nearest weighbridge to be weighed, then a witness must be called to prove that this is so. This may seem very troublesome but when it is remembered that conviction for exceeding weight limits puts an operator's licence at risk, it will be seen that it is well worth while.
There are a number of interesting stated cases on the law concerning overweight vehicles. In Maidment v Norris (1938) 82 Sol Jo 114, a driver of a lorry, acting upon the instructions of his employers, took his lorry to
London where it was loaded with timber. The weight of the load was judged in accordance with practice by the size of the timber, and it was estimated to be below the maximum allowed by the Construction and Use Regulations.
The lorry left London en route for Dorset and was stopped on the way by the police, who caused the vehicle to be weighed when it was found to be more than the weight allowed. The employer was not being paid to carry, and had instructed the driver not to carry, more than the legal load.
The lorry driver had instructions to have the lorry weighed if he was in any doubt as to the weight of the load and, in any case, to have it weighed at the first opportuntiy. This he had not done.
It was held on appeal that the driver was guilty of using the lorry when it was overloaded, and that the employer was taking a risk in allowing the practice of judging the weight of the load by its size and accordingly the employer was guilty of permitting the offence.
In another case, Prosser v Ritchings and Another (1936) 100 JP 390, a lorry was used when the sum of the weights transmitted to the road surfaces by the two rear wheels in line transversely exceeded the permitted maximum. The justices hearing the case were of the opinion that there was an onus upon the prosecutor to show that the method of weighing was satisfactory and this had not been done.
This was because (a) when the vehicle was weighed it was on the offside of the road and the camber would affect the weighing, (b) there was no evidence that the front wheels were standing on ground which was at a precisely similar level as the rear wheels. If the level was not precisely similar, the weight would be thrown to the front or rear depending upon the difference in height between the front and rear wheels of the vehicle. The magistrates dismissed the case and the prosecutor appealed.
On appeal it was held the regulation in its terms was absolute and made no provision for such matters as camber and gradient of the road at the place the weighing was carried out.
It must be remembered in this case that the offence was concerned with the weight on one axle. A different decision may have been arrived at if the total weight of the vehicle had been computed by totalling the weight of the two axles when the weighing took place on uneven ground.
In John Henshall (Quarries) Ltd v Harvey (1965) 129 JP 224, the quarry owners were convicted of aiding and abetting the driver of a lorry to contravene the C and U Regulations by driving it while it was overweight. The company employed an independent haulage contractor to do work for them. One of their employees was required to weigh vehicles at their weighbridge situated at the quarry.
The employee, who took no part in the management of the company, through an oversight allowed the contractor to drive away with an overladen lorry. The office manager of the company had no knowledge of the weighbridge attendant's oversight, but he carried out periodic checks at the weighbridge to see that the regulations were being complied with.
Allowing the appeal, it was held that to be guilty of aiding and abetting, the master must have actual knowledge of the facts from which the offence arose and this was not so in this particular case.