Primary brake and low gear areas

Are truck drivers ever permitted to use primary (service/foot) brakes in low gear areas like Mt Ousley?

Road Rules 2014 (NSW) s 108(1) requires:

If the driver of a truck or bus is driving on a length of road to which a trucks and buses low gear sign applies, the driver must drive the truck or bus in a gear that is low enough to limit the speed of the truck or bus without the use of a primary brake.

If law enforcement requires that the primary brake is not to be used in this context, it is my view that there may be an absurdity in the drafting of this statute. To clarify this point, if a truck driver is maintaining, for example, 35 km/h in a low gear section of road, using a low gear and engine brake, and without the need of the primary brake, the driver may have complied with this law. However, if that same driver in the same context approaches another vehicle from behind, travelling less than 35 km/h, the situation would be such that without the use of the primary brake a collision may occur.

The ordinary and plain meaning of the words ‘without the use of a primary brake’ suggests that the primary brakes are prohibited from use in the low gear signed area.

Unless I am mistaken, the mischief that the statute is enacted to address is to prevent excessive use of the primary brake, which may lead to overheating and brake failure.

It is my view that a judge may consider a statutory provision that prohibits an action to prevent an accident as absurd and manifestly wrong. Hence, if a judge agreed, he or she may resort to a Golden Rule means of statutory interpretation to avoid the absurdity. This is because ‘by inadvertence parliament has overlooked an eventuality’ of this statutory provision, as offered by McHugh JA’s comments in Bermingham v Corrective Services Commission of New South Wales. Moreover, it is also reasonable to consider that a judge may arrive at the purpose of the statute by other, perhaps more modern, means.

I cannot accept that it is the intention of the parliament to enact an unqualified prohibition of use of the primary brake, without reconciling the issue of slower moving obstacles in front of the low-geared vehicle. It appears that case law that has tested the statutory construction of  ‘without the use of a primary brake’ does not exist.

It is irrational to think that police or inspectors would sanction drivers in this unreasonable context. However, it appears that industry do not accept that law enforcement are trusted to only apply the rule in the excessive use context, hence the concerns raised in recent times.

Michael Sciberras

Michael is the Chief Executive Officer at ALLTRUCK DRIVER TRAINING. He has 16 years of heavy vehicle training and assessment experience, and is currently studying law at the University of New England.

Disclaimer – This article must not be relied up for legal purposes.