(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
2 October 2025
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - APPEAL AND REVIEW
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction.
On 18 August 2014, a vacuum truck owned by the appellant, Cleanaway Operations Pty Ltd (Cleanaway), collided with vehicles at the intersection at the bottom of the South Eastern Freeway, where Cross Road, Glen Osmond Road and Portrush Road meet at Myrtle Bank. The collision caused the death of two people and serious injuries to the driver Mr Hicks, an employee of Cleanaway, and another person.
The respondent, an inspector employed by Comcare, commenced a prosecution against Cleanaway, raising eight counts. Each concerned breaches of duties under the Work Health and Safety Act 2011 (Cth) (the WHS Act) which it was said were owed by Cleanaway to its employees or to others.
Following a trial before a magistrate, Cleanaway was convicted on all eight counts.
On appeal to a single judge, six of the eight convictions were set aside.
Cleanaway appealed against the two remaining convictions, being counts 1 and 2. Count 1 concerned breaches of duties owed by Cleanaway to its employees. Count 2 concerned breaches of duties owed by Cleanaway to persons other than its employees.
Cleanaway broadly contended that:
1.The Magistrates Court of South Australia did not have jurisdiction to hear and determine the charges laid against Cleanaway by the respondent because the respondent lacked lawful authority to issue the Complaint commencing the criminal proceeding.
2.The appeal judge erred in upholding the convictions on charges 1 and 2 on a basis not alleged in the charge sheet or opened.
3.The prosecution failed to prove the allegation that Mr Hicks’ competence to drive all vehicles he might be called upon to drive had not been properly determined.
4.The finding of guilt on charges 1 and 2 was based on an alleged reasonably practicable measure that was not alleged in the charges and on a basis that was not, in any event, open on the evidence.
5.The appeal judge erred in failing to apply the test of causation imposed by s 32(c) of the WHS Act.
Held (the Court), granting leave to appeal and dismissing the appeal:
1.Whether one views the case as depending on the combination of the function identified in s 152(h) of the WHS Act supported by the powers conferred by ss 153 and 230(1)(b), and in addition or alternatively on the function in s 230 supported by the power in s 153, in each case read together with the power of delegation in s 154, the respondent was authorised in writing to commence these proceedings. [128]
2.It has not been demonstrated that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cleanaway Operations Pty Ltd v Hanel [2025] SASCA 112
Case
[2025] SASCA 112
Decision Date
CaseChat Overview and Summary
Cleanaway Operations Pty Ltd appealed to the Supreme Court of South Australia against a decision of the District Court which had upheld a conviction against it for breaching work health and safety legislation. The dispute arose from an incident where an employee, Mr Hicks, who had recently obtained an HR class heavy vehicle driver's licence after training in a manual transmission truck, was assigned to drive a vacuum truck with an automatic transmission. Despite a brief "buddy system" and a subsequent driving assessment, Mr Hicks was permitted to drive the automatic truck alone shortly after commencing employment.
The primary legal issue before the Supreme Court was whether the appeal judge had erred in fact or law in upholding the finding that Cleanaway had breached its duty of care under work health and safety legislation. Specifically, the court considered whether the evidence supported the conclusion that Mr Hicks was exposed to a risk of harm due to Cleanaway's alleged failures in its training and supervision protocols for new drivers operating heavy vehicles. This involved examining the adequacy of the "buddy system," the driver assessment process, and the overall procedures for transitioning new drivers to solo operation of company vehicles.
The Supreme Court, comprising Livesey P, Lovell and Bleby JJ, found that the appeal judge's findings were open on the evidence presented. The court reasoned that the evidence supported the conclusion that Cleanaway had not adequately assessed Mr Hicks's competency to operate the automatic transmission truck, particularly given his recent training on a manual vehicle and the limited duration and nature of the "buddy system" and subsequent assessment. The court applied the principles of work health and safety legislation, which impose a positive duty on employers to ensure, so far as is reasonably practicable, the health and safety of their workers. The court concluded that the appeal judge had not erred in fact or law regarding the exposure element of the offence.
Permission to appeal was granted, but the appeal itself was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
The six other charges were in similar terms and need not be addressed. As mentioned, the convictions on those were set aside by the appeal judge.Factual background The evidence was that Mr Hicks had been recruited by Cleanaway on 11 August 2014 to work as a vacuum truck operator in the liquid division at Wingfield. Mr Hicks had obtained his unrestricted HR class heavy vehicle driver’s licence on 3 July 2014, following the completion of 15 hours of heavy vehicle training with G&L Heavy Vehicle Driving Centre. That training was conducted in a truck which had a manual transmission.[7][7] See exhibit P4. On the first two days Mr Hicks worked for Cleanaway, 12 and 13 August 2014, he drove Truck 349 which was a vacuum truck with an automatic transmission. On both days, an experienced driver sat with Mr Hicks in the passenger seat as part of a “buddy system”, but did not give Mr Hicks any guidance on his driving.[8][8] Exhibit P4; Transcript, pp 226-227. On 14 August 2014, Mr Hicks drove Truck 349 alone. The Fleet Supervisor for Cleanaway was not aware of any policy or procedure for how long a driver was to be part of the buddy system, nor when the decision would be made that a new driver would drive alone.[9] [9] Transcript, p 264. Cleanaway employed Mr Gregory Skinner as a Driver Trainer/Driver Assessor.[10] Mr Skinner said in evidence that, usually, the buddy system took place for a period of two to four weeks and, the less experienced the driver, the longer the period of buddy accompaniment.[11] Other Cleanaway drivers had been accompanied by a buddy for a period of between one and four weeks when they commenced employment with Cleanaway.[12][10] Exhibit P4, paragraph 41 and the appeal judge, [91].[11] Transcript, pp 325-326.[12] Transcript, pp 98-99, 220. On 14 August 2014, Mr Hicks undertook a Heavy Vehicle General Driving Assessment with Mr Skinner. The assessment was undertaken using the same truck, Truck 349, which had an automatic transmission.[13] Mr Skinner had no control over the truck the drivers were assessed in, nor was he aware of any procedure for choosing the vehicle used in the driver assessment.[14] [13] Exhibit P4, [40]-[41], document 45, pp 1, 8; Transcript p 331 and onwards, p 422.[14] Transcript, pp 310, 337. The assessment was undertaken by reference to a form different to that which applied for a new driver.[15] Mr Skinner wrote on the form that Mr Hicks was competent in “all tasks” although he had not assessed him in a number of the tasks set out on the form including “Gear lever in gear”, “Gear changing clutch operation” and “uses low gear”.[16][15] Exhibit P4, document 34. Exhibit P9. See Transcript, pp 329, 331, 333-334, 342.[16] Exhibit P4, document 34. Transcript, pp 333-338, 342-343. On 18 August 2014, Mr Hicks and a colleague, Mr Melbourne, were allocated the “Adelaide Hills run”.[17] Mr Melbourne was not required to mentor or buddy Mr Hicks. They drove separate trucks.[18][17] Transcript, pp 101, 103.[18] Transcript, p 103.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the circumstances of this case, these findings were open on the evidence, and it has not been shown that the appeal judge erred in fact or law concerning the exposure element. Appeal ground 4 should be dismissed.Conclusion Permission to appeal should be granted. The appeal should be dismissed.