On 22 May 2022, the Supreme Court of South Australia handed down a decision in Cleanaway Operations Pty Ltd v Phillip Hanel (Commonwealth: Comcare) [2022] SASC 52 upholding the conviction of Cleanaway Operations Pty Ltd (Cleanaway) for offences under section 32 of the Work Health and Safety Act 2011(Cth) (Act).
Background
On 18 August 2014, a Cleanaway vacuum truck was travelling down the South Eastern Freeway before the driver, Mr Hicks, lost control after reaching speeds of 151.9km/h. As a result, a collision occurred with other vehicles at an intersection on the freeway killing two people and seriously injuring two others.
The Magistrates’ Court of South Australia convicted Cleanaway on eight counts of offences. Specifically, Cleanaway had breached its duties under the Act to ensure, ‘so far is reasonably practicable, the health and safety of its workers, and of other persons’.
Counts one, three, five and seven were in respect of Cleanaway breaching its duty to ensure the safety of its workers. Whereas counts two, four, six and eight were in respect of Cleanaway being in breach of its duty to ensure the health and safety of persons other than its workers. The Magistrate also found that Cleanaway failed to ensure that the employee was competent to select the proper gearing on the truck. As a result, Cleanaway was fined $12 million for all these breaches.
On appeal, Cleanaway sought to set aside the convictions on five grounds however, for employers in the transport and logistics industry, the two important grounds of note are:
- The Magistrate erred in finding that there was sufficient evidence to prove that it was reasonably practicable to assess the competence of the employee to drive the vacuum truck down the South Eastern Freeway; and
- The Magistrate erred in finding that the ‘causation’ element of the offences was satisfied by proof that the alleged measures would have reduced the risk.
Cleanaway maintained that there was a failure by the Magistrate and the prosecution to establish whether there was just a single breach of each duty – being the duty owed to employees and the duty owed to other persons.
Decision on Appeal
Prior to reaching their decision, the Supreme Court of South Australia assessed whether Cleanaway took necessary steps to ensure that Mr Hicks was competent to drive the vacuum truck on the South Eastern Freeway. In this assessment, there was an examination to confirm if the arrester beds on the freeway were properly utilised, whether the correct gear in line with the speed limit was used and if brakes in the vacuum truck were used on the hills of the South Eastern Freeway.
As a result, the Supreme Court upheld the first two of the original eight counts of offences under section 32 of the Act while setting aside the remaining six. Cleanaway’s appeal to set aside counts one and two were ultimately dismissed by the Court due to:
- A failure in ensuring driver competence to drive down the South Eastern Freeway in the vacuum truck; and
- A connection between the exposure of the risk and the breach of duty was proven as there were reasonably practicable measures available to Cleanaway that if adopted, would have materially reduced the risk.
In light of the Courts findings, Cleanaway’s original fine of $12 million was reduced to $3 million.
Lessons for employers
Under section 32 of the Act, it is paramount for employers to be aware of the risk of penalties if they fail to comply with their health and safety duties. Section 19 of the Act provides the overall obligation of a duty of care to workers and to ensure that a person conducting a business implements safety structures in place in the workplace.
Part of the appeal was upheld due to Cleanaway’s failure to implement the reasonably practicable measures available that, if adopted, would have materially reduced the risk of collision on the South Eastern Freeway. These measures include maintaining a system of work whereby a driver cannot drive a vacuum truck without supervision until his competence to drive all vehicles has been properly assessed and ensuring that the driver was properly trained on the use of gearboxes and driving on the freeway.
Further, Cleanaway failed to ensure the competency of Mr Hicks of driving down the South Eastern Freeway before he did so. All employers should ensure that drivers have adequate and regular training suited to the type of vehicle they are driving and the conditions of the roads they are required to drive on. Employers should ensure all employees are fully competent to perform the tasks they are required to perform.
Contact Us
If you have any questions about how any of the above impacts your business, or you would like assistance with reviewing your health and safety duties, please contact a member of our Workplace Relations team.
References
1. CLEANAWAY OPERATIONS PTY LTD v PHILIP HANEL (COMMONWEALTH: COMCARE) [2022] SASC 52 (26 May 2022)
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