Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) - [2022] SASC 52

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
CLEANAWAY OPERATIONS PTY LTD v PHILIP HANEL (COMMONWEALTH: COMCARE)
[2022] SASC 52
Judgment of the Honourable Chief Justice Kourakis
26 May 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
INDUSTRIAL LAW - WORK HEALTH AND SAFETY
INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES - DUTIES
This is an appeal from the Magistrates Court by a company against conviction of eight counts of offences against s 32 of the Work Health and Safety Act 2011 (Cth). The appellant is a waste management company that operates large commercial trucks. On 18 August 2014, a vacuum truck owned by the appellant company and driven by an employee of the appellant company (employee), went out of control reaching a speed of 151.9km/h before colliding with vehicles at the intersection of the South Eastern Freeway, Cross Road and Portrush Road in Adelaide.
As a result of the accident, two people were killed and the employee and one other person were seriously injured. The essential factual finding made by the Magistrate on which the convictions rest is that the appellant failed to ensure that the employee was competent to select the proper gearing for the vacuum truck on his descent along the South Eastern Freeway.
The appellant brings this appeal on five grounds:
1.The Magistrate erred in holding that the prosecution was not required to prove those particulars of the charges alleging a failure by the appellant to discharge its duties in respect of the employee’s competence to drive all vehicles on all routes.
2.The Magistrate erred in admitting the evidence of the expert witness, or in the alternative gave his evidence excessive weight.
3.The Magistrate erred in relying on the appellant’s driver training and assessment protocol which was produced after the incident.
4.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 down the South Eastern Freeway.
5.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.

Held, per Kourakis CJ:
1. The appeal is dismissed with respect to counts 1 and 2:
a)The trial was clearly confined to the employee’s competence to drive the vacuum truck on the descent of the South Eastern Freeway.
b)The parts of the expert’s opinion on which the Magistrate relied and complained of by the appellant were within the expert’s expertise and were soundly based.
c)The draft driver training and assessment protocol was evidence of possible safety measures identified by the appellant’s employees. The evidence placed an evidentiary onus on the appellant to adduce evidence as to why the measures were not reasonably practicable and the appellant failed to do so.
d)There was no practical reason for not assessing the employee’s competence to drive down the South Eastern Freeway before he was directed to do so in a vacuum truck.
e)The only connection which must be proved between the exposure to risk and the alleged breach of duty is that there were reasonably practicable measures available to the appellant that if adopted, would have materially reduced the risk.

2. The appeal is allowed on counts 3, 4, 5, 6, 7, 8 and the convictions on those counts set aside.
Work Health and Safety Act 2011 (Cth) ss 32, 19(1), 19(3)(c), 19(3)(f), 14, 15, 16, 17, 17(b), 33, 18, 19, 31, 19(2); Work Health and Safety Act 2011 (NSW) ss 32, 19(2), referred to.
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, applied.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Grasso v SafeWork NSW [2021] NSWCCA 288, discussed.
Commonwealth: Comcare v Cleanaway Operations Pty Ltd (ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54, considered.

CLEANAWAY OPERATIONS PTY LTD v PHILIP HANEL (COMMONWEALTH: COMCARE)
[2022] SASC 52
Magistrates Appeal: Criminal

KOURAKIS CJ: The appellant (Cleanaway Operations Pty Ltd – Cleanaway) appeals against convictions on eight counts of offences against s 32 of the Work Health and Safety Act 2011 (Cth) (the Act). The subject matter of each of the convictions is a breach of Cleanaway’s duties under the Act to ensure, so far as is reasonably practicable, the health and safety of its workers, and of other persons, who may be put at risk from the work carried out as part of its business or undertaking.
On 18 August 2014, Mr Hicks lost control of a Cleanaway vacuum truck he was driving on the down track of the South-Eastern Freeway (the Freeway) when it suffered a catastrophic brake failure resulting in an accident at the intersection of the Freeway with Cross Road, Portrush Road and Glen Osmond Road in which two people were killed and Mr Hicks and one other person were seriously injured. Mr Hicks failed in his attempts to engage a lower gear on his approach to the intersection leaving the vacuum truck in neutral. The essential factual finding made by the Magistrate on which the convictions rest is that Cleanaway failed to ensure that Mr Hicks was competent to select the proper gearing for the vacuum truck on his descent along the Freeway.
Counts 1, 3, 5 and 7 alleged a breach of Cleanaway’s duty to ensure the safety of its workers. Count 1 alleged a failure to maintain a safe system of work in accordance with ss 32, 19(1) and 19(3)(c) of the Act in that Cleanaway did not eliminate or minimise the risk of a collision between vacuum trucks and other road users by failing to prevent Mr Hicks from driving vacuum trucks without supervision until his competence ‘to drive all vehicles he may be required to drive in the course of his work was properly determined’ including an assessment of his competence to drive a truck with a manual gearbox. The charge relevantly reads:
Charge 1
On or about 18 August 2014 at Adelaide in the State of South Australia pursuant to section 32, section 19(1) and section 19(3)(c) of the Work Health and Safety Act 2011 (Cth) (‘the Act’) Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) failed to comply with a health and safety duty in that as a person conducting a business or undertaking Transpacific Industries Pty. Ltd. failed to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by Transpacific Industries Pty. Ltd. while the workers were at work in that business of undertaking.
Particulars
1.The defendant, Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) (‘TPI’), was at all material times a body corporate.
2.TPI was at all material times a non-Commonwealth licensee and as such subject to the jurisdiction of the Act.
3.The acts and omissions of the defendant took place at workplaces including the TPI depot at Wingfield, South Australia, the South-Eastern Freeway in Adelaide and various other places.
4.The undertaking of the defendant included the collection and transport of septic waste pursuant to a contract with Adelaide Hills Council.
5.There was a hazard in the workplace, namely the use of large vacuum trucks travelling on public roads generally and the South-Eastern Freeway in particular.
6.The defendant had a health and safety duty pursuant to s. 19(1)(a) and s. 19(3)(c) of the Act to provide and maintain a safe system of work to ensure, so far as was reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the defendant.
7.The defendant failed to comply with that duty in that it exposed a worker, namely Darren Hicks, to risk of death or serious injury.
8.The health and safety risk to which Darren Hicks was exposed was serious injury or death as a result of:
· Collision between vacuum trucks and other road users.
9.There were reasonably practicable measures available to the defendant to control the risks arising from the defendant’s undertaking. The defendant: Failed to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all vehicles he may be required to drive in the course of his work was properly determined by the defendant, including the assessment by the defendant of Darren Hicks’ competence in the task of driving a truck with a manual gearbox.
The third count alleged a failure by Cleanaway to comply with a health and safety duty imposed by ss 32, 19(1) and 19(3)(f), in that it did not eliminate the risk of a collision between vacuum trucks and other road users by failing to provide Mr Hicks with adequate training. Other than substituting the reference to s 19(3)(c) with s 19(3)(f), and in the particularisation of the breach of duty in Particular 9, the third count took the same form as count 1. The reasonably practicable measure alleged in count 3 was a failure to provide training, instruction and supervision whereby Mr Hicks’ competence to drive all vehicles he may be required to drive in the course of his work including trucks with a manual gearbox was properly determined.
The fifth count relied on ss 32, 19(1) and 19(3)(c) and alleged a failure by Cleanaway to maintain a safe system of work. The reasonably practicable measure alleged by Particular 9 was a failure to prevent Mr Hicks driving vacuum trucks without supervision until his competence to drive ‘all routes he may be required to drive in the course of his work was properly determined’, including his competence to drive down the South-Eastern Freeway and to use arrester beds when required.
Count 7 relied on ss 32, 19(1) and 19(3)(f). It alleged a breach of duty by failing to provide such training, instruction and supervision whereby Mr Hicks’ competence to drive all routes he may be required to drive, was properly determined, including the assessment of his competence to drive a truck down the South-Eastern Freeway and in the use of arrester beds.
Counts 1, 3, 5 and 7 may be summarised as follows:
·Counts 1 and 5 alleged that Cleanaway failed to provide a safe system of work by allowing Mr Hicks to drive the vacuum trucks before assessing his competence to use a manual gearbox and to drive down the Freeway respectively.
·Counts 3 and 7 alleged a breach of duty to train and assist Mr Hicks on the use of a manual gearbox and on how to drive a vacuum truck down the Freeway respectively.
Counts 2, 4, 6 and 8 followed the pattern of counts 1, 3, 5, and 7 but in respect of the breaches of Cleanaway’s duty to ensure, as far as is reasonably practicable, the health and safety of persons other than its workers.
By ground one of its notice of appeal Cleanaway complains that the Magistrate erred in holding that the prosecution was not required to prove those particulars of the charges alleging a failure by Cleanaway to discharge its duties in respect of Mr Hick’s competence to drive all vehicles on all routes.
I would dismiss this ground of appeal for the reason that the trial was clearly conducted on the basis that Cleanaway breached its duties under the Act in respect of Mr Hick’s competence to drive the vacuum truck on the descent of the Freeway. Indeed, the gravamen of the offences charged against s 32 of the Act was the exposure of Cleanaway’s employees, and others to the risk of injury from a collision between the vacuum truck and others on that descent. The extension of the particulars to all routes and all vehicles was unnecessary and embarrassing and ought, if an application had been made by Cleanaway, to have been struck out. Cleanaway did not so apply and there was therefore no prejudice to it, other than, perhaps, as to costs. However, it is a consequence of my conclusion that offences against s 32 are anchored in the particular risk to which others were exposed, and that a separate offence is not committed for each act or omission in breach of the duties imposed, that Cleanaway is entitled to a defence by way of a plea in bar to all counts but the first two.
By ground two Cleanaway complains that the Magistrate erred in admitting the evidence of the expert witness Dr Rechnizter, or in the alternative gave his evidence excessive weight, when his opinions:
·were not based on specialised knowledge;
·not sufficiently reasoned;
·were based on unproven assumptions and an incorrect understanding of the Australian Road Rules;
·he had abandoned in cross-examination his opinion that Mr Hicks should have been instructed to keep the vehicle at a speed of no greater than 60 kph.
I would dismiss the appeal on this ground for the reason that those parts of Dr Rechnitzter’s opinions on which the Magistrate relied were within his expertise and were soundly based.
By ground three Cleanaway contends that the Magistrate erred in relying on Cleanaway’s draft driver training and assessment protocol which was produced after the incident and a discussion paper on changes to Heavy Vehicle driving laws in holding that Cleanaway had breached its duties.
I would dismiss this ground of appeal for the reason that the documents evidenced possible safety measures identified by Cleanaway, and were, on their face, sensible options. The evidence placed an evidentiary onus on Cleanaway to adduce evidence as to why the measures were not reasonably practicable. Cleanaway failed to do so.
By ground four Cleanaway contends that the Magistrate erred in finding that there was sufficient evidence to prove that it was reasonably practicable to assess the competence of Mr Hicks to drive down the Freeway:
·when there was no evidence that Hicks was not competent;
·when Mr Hicks had been assessed as competent to hold a driver’s licence;
·in the absence of an industry standard or practice as to assessment of a truck driver’s competence;
·when it was not put to Hicks that he had driven down the Freeway other than in accordance with correct driving practices;
·when it was not suggested to any relevant witness that the procedures that Cleanaway had in place were deficient;
·when there was no evidence that a reasonable person conducting Cleanaway’s business would have regarded an assessment of competence to drive down the Freeway as warranting a discrete assessment.
I would dismiss the appeal on this ground. The risks of a collision between a heavy vehicle like the vacuum truck and other road users arising from a failure to control its speed on the steep descent along the Freeway into a busy suburban intersection was obvious and unusual. Driver competence in effecting appropriate gear changes was an important safeguard against that risk. Holding a heavy vehicle licence is a regulatory requirement which ensures a minimum, but not always sufficient, standard of competence. So much was recognised by Cleanaway because it employed a person to assess the competence of the drivers it employed. There was no practical reason for not assessing Mr Hicks competence in gear selection for a descent of the Freeway before he was directed to drive the vacuum truck down the Freeway.
By ground five Cleanaway contends that 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 submits that the Magistrate should have found that, the prosecution was required to prove that the omission to put in place the alleged measures was a significant or substantial cause of the nominated people being exposed to the specified risk of serious injury or death.
I would dismiss ground five because on a proper construction of s 32 of the Act the only connection which must be proved between the exposure to risk and the alleged breach of duty is that there were reasonably practicable measures which, if adopted by the PCBU, would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which the PCBU was not responsible.
The legislation
Section 14 of the Act provides that an employer’s duty cannot be transferred to another person; it is non-delegable. Section 15 of the Act declares that a person can owe more than one duty by reason of being a member of more than one class of duty holder. Section 16 of the Act provides that two or more persons can concurrently owe the same duty.
Section 17 of the Act provides:
A duty imposed on a person to ensure health and safety requires the person:
(a)to eliminate risks to health and safety, so far as is reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable.
The elimination of all risks in most workplaces, and in industries utilising heavy machinery in particular, is seldom reasonably practicable. In most cases, and certainly cases of this kind, it will suffice to focus on the minimisation of risk mandated by s 17(b) of the Act.
Section 18 of the Act applies what is commonly referred to as the Shirt[1] formula, as the test of what is reasonably practicable. The assessment is to be undertaken at the particular time of the alleged breach and is limited to what is ‘reasonably able to be done’ taking into account and weighing up all relevant matters, including:
(a)the likelihood of the hazard or the risk concerned occurring;
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or reasonably to know, about:
(i)    the hazard or the risk; and
(ii)     ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
[1]     Wyong Shire Council v Shirt (1980) 146 CLR 40.
Section 19(1) imposes what the heading to that section describes as the ‘primary duty of care on a person conducting a business or undertaking’. A person on whom the duty is imposed by s 19 of the Act is referred to in the submissions made in the Magistrates Court and before me, and in the judgment of the Magistrate, by the acronym PCBU. That person must ensure, so far as is reasonably practicable, the health and safety of:
(a)workers engaged, or caused to be engaged, by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
Counts 1, 3, 5 and 7 rely on the duty to other workers imposed by s 19(1) of the Act.
Section 19(2) of the Act provides that a PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of engaging in the business or undertaking. Counts 2, 4, 6 and 8 rely on the duty imposed by s 19(2) of the Act.
The reason for the differences in text and structure between subsection (1) and (2) of s 19 is not obvious. The former duty is to ensure the health and safety of workers, whereas the latter is to ensure that the health and safety of other persons is not put at risk. However, when the minimisation of risk limb of the duty to ensure health and safety prescribed by s 17 is read into s 19 of the Act, there will be little practical difference between subsections (1) and (2) in the generality of cases. The difference in drafting is perhaps necessary in order to limit the duty owed to non‑workers to safeguarding them only from those risks which arise out of the very work carried out in the course of the business or undertaking. The duty to employees on the other hand, extends to ensuring their health and safety, and minimising the risks to their health and safety, arising from any cause, and not just the work carried out as part of the business and undertaking, whilst the employees are acting in the course of their employment.

Section 19(3) of the Act provides:
(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
(a)     the provision and maintenance of a work environment without risks to health and safety; and
(b)     the provision and maintenance of safe plant and structures; and
(c)     the provision and maintenance of safe systems of work; and
(d)     the safe use, handling and storage of plant, structures and substances; and
(e)     the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)      the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)     that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
The opening words of s 19(3) without limiting subsections (1) and (2) are important. They show that the provision of the prescribed safety measures are aspects of the duties imposed in respect of workers and others by subsections (1) and (2) respectively. As we have seen, counts 1, 2, 5 and 6 rely on s 19(3)(c) and counts 3, 4, 7, and 8 rely on s 19(3)(f) of the Act.
Section 32 of the Act provides:
32—Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if—
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
Penalty:
(a)In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000;
(b)In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000;
(c)In the case of an offence committed by a body corporate—$1 500 000.
Section 33 of the Act provides:
33—Failure to comply with health and safety duty—Category 3
A person commits a Category 3 offence if—
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty.
Penalty:
(a)In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000;
(b)In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000;
(c)In the case of an offence committed by a body corporate—$500 000.
Before considering the terms of s 32 and s 33 more closely, I mention that s 31 creates an offence of, in effect, committing an offence against s 32 but with the more culpable mental element of being reckless as to the risk to an individual of death or serious injury or illness.
The elements of the offence-duplicity plea in bar
Section 33 may be described as the basic offence of breaching either one of the duties imposed by s 19 of the Act. The elements of the offence are that:
(1)the person owed a health and safety duty in that he or she conducted a business or undertaking; and
(2)the person failed to comply with that duty in that he or she failed to take all reasonably practicable measures to eliminate or minimise risks from the work carried out in the conduct of the business or undertaking.
Section 17 of the Act stipulates that a person bound by a s 19 duty must eliminate or minimise risks to health and safety as far as is reasonably practicable. Section 18 of the Act guides how an assessment of what is reasonably practicable is to be made, and s 19(3) of the Act provides a guide to the kinds of reasonably practicable measures which may need to be taken. Offences against s 33 of the Act are committed when a PCBU breaches a duty owed to workers by failing to eliminate or minimise risks to them or when it breaches a duty to other persons by failing to eliminate or minimise risks to them.[2]
[2] S Kidman & Co Ltd v Lowndes and Anor [2016] NTCA 5 at [62]-[63].
Within that context, on a proper construction of s 33 of the Act it is the failure to eliminate or minimise the risk particularised in the charge which constitutes, and fixes the metes and bounds, of each discrete offence against s 33 of the Act. There is not a separate offence for each reasonably practicable measure which might have in some degree, eliminated or minimised that risk.[3] It must be remembered that reasonable precautionary measures to safeguard against a risk may overlap and that some secondary safeguards are put in place lest the primary precaution fails. Conversely, a single charge which alleges a breach of either one of the s 19 duties by failing to take reasonably practicable measures to minimise a multiplicity of different risks would likely be bad for duplicity.
[3] S Kidman & Co Ltd v Lowndes and Anor [ 2016] NTCA 5.
The degree of particularity with which the risk is identified is important. The risk may be identified by the harm which may result or by the mechanism or agency which may cause that harm. It is the latter approach which was adopted by particular 8 of the charges: the risk of a collision between a vacuum truck and other road users. Importantly however, it is the particular risk which the PCBU can reasonably control which must be the focus of the basic offence or an offence against s 33. In the circumstances of this case it was the risk of a collision between the vacuum truck and other Freeway users arising out of the manner in which the vacuum truck was driven. In other circumstances it may be a risk arising out of the condition of the truck or the risk caused by external dangers which it was practicable to anticipate. The risk might be widely or narrowly identified. Whether or not a charge which alleges a widely framed risk is bad for latent or express duplicity will obviously depend on the factual context.[4]
[4] Diemould Tooling Services Pty Ltd v Oaten [2008] 101 SASR 339 at [30]-[39].
The critical additional element of s 32 of the Act, which distinguishes it from the basic offence enacted by s 33, is that a person is exposed to a risk of death or serious injury or illness in respect of which all reasonably practicable measures to eliminate or minimise the risk have not been taken. The metes and bounds of a discrete offence against s 32 of the Act are therefore subject to the further, narrowing filter, that a person has been exposed to the risk which the employer has failed to eliminate or minimise. It follows even more strongly, therefore, that an offence against s 33 is delineated by the particular risk to which a person has been exposed. A charge which alleged that a person was exposed to a multiplicity of risks, would necessarily be bad for duplicity. The conclusion in respect of s 32 supports the taking of a symmetrical approach to s 33 of the Act even though exposure to a risk is not an element of the basic offence.
There can be no offence against s 32 of the Act if the only risk flowing from the failure to take all reasonably practical measures to minimise or eliminate it, is of minor harm. However, the concept of exposure requires something more than simply the failure to minimise risk. There is a distinction between failing to eliminate or minimise risks to health and safety (to use the language of s 17 of the Act) and putting a person at risk (to use the language of s 19(2)) on the one hand, and that element of s 32(c) of the Act which is exposing an individual to risk on the other. Some examples may help to illuminate that distinction.
A PCBU conducting an enterprise who fails to check the brakes of heavy vehicles as often as it is reasonably practicable to do so fails to minimise the risk of a collision caused by a brake failure. That PCBU does not ensure the safety of the enterprise’s workers and puts others at risk. The PCBU, therefore, breaches the duty and commits an offence against s 33 of the Act even if the vehicle has not left the garage after the last inspection was due. So too if the vehicle is driven well after a scheduled inspection even though the brakes are nevertheless found to be in proper working order. However, if the truck is driven out of the garage, and the brakes are then found to have a latent fault which might have resulted in a catastrophic brake failure, and the basic offence been committed, but in addition, persons in the vehicle’s path have also been exposed to risk. An offence against s 32 of the Act will therefore have been committed.
So too, with respect to a failure to assess the competence of a newly engaged driver. A failure to make an assessment when it is reasonably practicable to do so, will result in a breach of the duty and a failure to minimise risk and the commission of a s 33 offence. If the driver is found, in fact, to be perfectly competent to drive the vehicle on the route it took, no one will have been exposed to a risk. On the other hand, if the driver is shown not to have the necessary competencies to control the speed of the truck and manage a brake failure down the steep route on which the truck was driven, the PCBU commits a s 32 offence.
The risks to which other workers and/or the public will be exposed in the course of the operations of an enterprise may vary greatly. Whether or not workers or the public were exposed to a risk may depend on a range of different factual circumstances and findings. A charge which encompasses many alleged exposures is likely to be bad for latent duplicity.
I turn to the expansive way in which the breaches are alleged to include ‘all vehicles’ and ‘all routes’ respectively. The respondent need not have pleaded the duty so widely and the prosecution case was plainly much narrower. It cannot sensibly be said to be a breach of the duty to ensure, as far as is reasonably practicable, the health and safety of a worker to preclude him or her from driving a vacuum truck which he or she has been trained, and is competent, to drive safely because he or she is yet to be trained to drive a bulldozer or a road train. In such a case the employer has taken all reasonably practicable measures to minimise the risk of a collision between a vacuum truck driven by the worker and other road users. There may be a breach of duty and an offence committed if the employee’s duties extend to driving a road train for which he or she has not been trained but that is in respect of a different risk (collision between a road train and other users) which must be separately charged. Equally it is not a breach of that duty to allow a driver to drive a vacuum truck down the Freeway, when he or she has been trained, and is competent, to drive it down the Freeway because he or she has not yet been trained to drive it along North Terrace in peak hour. Again, the risk of a collision on North Terrace is different to the risk of a collision on the Freeway.
Nonetheless the appellant has seized on the expansive pleading in Ground 1 of its notice of appeal. The appellant contends that the respondent never proved that Mr Hicks had not been trained and was not competent with respect to other vehicles or other roads and that therefore the charges must fail. The major premise of the submission can be accepted but the conclusion must be rejected. First, it is clear from the particularisation of, and special reference to, vacuum trucks and the Freeway in particulars 5 and 8 that the risk which was not minimised was the risk of a collision between the vacuum truck and other road users. Moreover, the prosecution relied on the accident, which did happen, as a manifestation, and evidence, of the risk to which persons were exposed by the applicant’s breach of its duty to ensure that Mr Hicks was trained and competent to drive a vacuum truck down the Freeway. Finally much of the evidence at the trial concerned the reasonableness of the gear changes made by Mr Hicks as he drove down the Freeway.
The Magistrate was left in no doubt that the prosecution case was confined to the vacuum truck and the descent on the Freeway. The following paragraphs[5] of the Magistrates reasons set out the course of the trial proceedings which support that conclusion.
[5] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.
70All argument advanced by the defendant company is contained at para.3 to 15 of the defendant's outline under the heading 'The specified measures' and 'A different case’.
71Paragraphs 5 and 6 of the defendant's outline encapsulate the argument.
(5)     The prosecution case as pleaded and opened alleged that the specified measure was that Cleanaway was required to assess the competence of Darren Hicks (in the mariner of the Skinner assessment), in relation to all vehicles he may be required to drive in the course of his work (including manual vehicles) (Charges I -4 inclusive) and in relation to all routes he may be required to drive as part of his work (including the South Eastern Freeway) (Charges 5-8 inclusive).
(6)     There is no evidence capable of establishing that case. There is no evidence and no witness gave evidence that such measures were reasonably practicable.
72Reference is made to a portion of the prosecution's opening at transcript pages 17 to 18.
73It is argued (see para 8 and 9) the prosecution have sought to abandon the charge as pleaded. At para.9 it is stated as follows:
'9.      The prosecution has abandoned the case as specified in the charge sheet and opened. It should be held to its case as pleaded and opened and the charges should be dismissed.'
74It is claimed that a more specific charge different to that original pleaded is now pursued (See para.10 to 16)
75I do not accept his argument.
76The charges as laid are quite specific. Each charge identifies :
1.    A particular date (in each instance the same date namely 18 August 2014);
2.     A specific hazard which is common to all charges and reads as follows 'There was a hazard in the workplace, namely the use of large vacuum trucks travelling on public road generally and the South Eastern Freeway in particular' (see particular 5 of each charge);
3.     Each charge identifies specific individuals said to have been exposed to risk of death or serious injury (in this regard see particular 7 which identifies the occupants of the vehicles involved in the collision of 18 August 2014).
77     Accordingly, the allegation relates to a quite specific time, place, and event.
78     The contentious wording appears in particular 9 of each charge which alleges the 'reasonably practicable measures' said to have been available to the defendant company to control the risks arising from the defendant's undertaking. In my view the allegations as laid are clear. I use the first charge as an example. Particular 9 reads as follows
'There were reasonably practicable measures available to the defendant to control the risks arising from the defendant's undertaking. The defendant; failed to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all vehicles he may be required to drive in the course of his work was properly determined by the defendant, including the assessment by the defendant of Darren Hicks' competence in the task of driving a truck with a manual gearbox'
79In my opinion the failure in the system of work is quite specific. The failure is that Hicks had not been assessed as being competent in the driving of trucks with manual gearboxes.
80The quotation referred to from the prosecutor's opening does not lead me to the conclusion that the allegation in relation to each charge was other than quite specific from the outset of the trial.
81In his opening the prosecutor identified precisely the date of the incident, the truck involved (Truck 105, a manual gearbox truck), the location (South Eastern Freeway), the person exposed to the risk of death or serious injury and the hazard said to exist and the reasonably practicable measures said to be available to control the risk.
82In describing the proposed evidence of Rodney Farrar the prosecutor said as follows;
83    See p.17 line 32 to p.18 line 5
'... At the time of his engagement it was known that he was employed to operate the vacuum trucks therefore it was also known the routes that he would take in completion of the set contract pick-ups and he also opines that the assessment of Mr Hicks was inappropriate in that it was conducted in an automatic vehicle only. Despite the fact that Hicks had been assigned an automatic vehicle for the first two days of his employment, it was known that there were also manual vehicles in the fleet and that it was reasonable to assume that at some point in time Hicks would be required to drive one of those vehicles'
84     In describing charge 3 he said as follows;
85     See p.15 line 28 to 38
'Correct. And the third allegation is that Cleanaway failed to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all routes he may be required to drive in the course of his employment was properly determined by the defendant including the assessment by the defendant of Darren Hicks competence in the task of driving a truck on a truck on a hill in the sense of the South Eastern Freeway and the assessment by the defendant of Darren Hicks competence in the use of arrester beds'
86     Furthermore, it is plain from the evidence led by the Crown that the allegations were specific. The trial has focused on the driving by Darren Hicks of a manual truck (Truck 105), down the South Eastern Freeway which culminated in a collision at the bottom of that freeway on 18 August 2014.
…
104 The prosecution position throughout has been that the reasonably practicable measure alleged to be available to the defendant company to control the risk is that alleged in each count at particular 9. Properly understood, the allegation is that there has been no proper determination either to assess the competence of Hicks to drive a manual truck or to drive a truck on the hill descents of the South Eastern Freeway. The opinion expressed by Dr Rechnizter, at p.61 of PI3 was argued to be relevant to the factors contained in s.18 of the Act in proof that the measure alleged was reasonably practicable.
The unduly broad pleading could not have caused the appellant any prejudice, other than possibly as to the costs of preparing a defence with respect to other trucks and roads. If that is so the prejudice can be met by the making of a special costs order, I therefore dismiss Ground 1.
In this case, the identified risk of a collision between the vacuum truck and other road users carries no latent duplicity. The driving of the vacuum truck down the Freeway is one course of conduct. The risk could have been minimised by any single one, or any combination, of the reasonably practicable measures alleged: providing a supervisor, not allowing Mr Hicks to drive, properly training Mr Hicks on manual gearboxes, or properly training Mr Hicks on driving down the Freeway.
However, it follows from the above analysis there was a single breach of the duty owed to employees and a single breach of the duty owed to other persons. That breach was the failure to minimise the risk of a collision between a vacuum truck driven by Mr Hicks down the Freeway and other road users.

After judgment was reserved, I wrote to the parties requesting submissions on the following questions:
1.Whether there is:
1.1one offence against s 32 of the Work Health and Safety Act 2011 (Cth) committed with respect to a single exposure to a risk irrespective of the number of reasonably practicable measures which might have been taken to eliminate or minimise the risk; or
1.2an offence against s 32 for each reasonably practicable measure which was not taken irrespective of the number of risks to which individuals were exposed; or
1.3an offence against s 32 for each reasonably practicable measure which was not taken to eliminate or minimise each risk to which individuals were exposed.
I received written submissions and heard oral submissions on 16 May 2022. Both Cleanaway and the Director of Public Prosecutions (Cth) for Comcare agreed that the answer was that posited in [1.1] that there is one offence against s 32 of the Work Health and Safety Act 2011 (Cth) committed with respect to a single exposure to a risk irrespective of the number of reasonably practicable measures which might have been taken to eliminate or minimise the risk.
In his written submissions the Director correctly distinguished ss 83 and 83 of the Act from the statutory provisions considered in Chugg v Pacific Dunlop[6] which expressly provided that an employer contravenes his duty if it fails to take any of the prescribed safeguards. By contrast this Court in Diemould Tooling Services Pty Ltd v Oaten[7] held that the safety measures prescribed by the Occupational Health and Safety and Welfare Act 1986 (SA) were no more than safeguards to which Parliament called particular attention in determining whether the employer did all which was reasonably practicable to keep its workers safe from injury and risk to health.[8]
[6] Chugg v Pacific Dunlop Ltd [1988] VR 411.
[7] Diemould Tooling Services Pty Ltd v Oaten [2008] 101 SASR 339.
[8] Diemould Tooling Services Pty Ltd v Oaten [2008] 101 SASR 339 at [18]-[19],[28]-[29].
Accordingly, I would set aside the convictions on counts 3, 4, 5, 6, 7 and 8. The appellant has a defence by way of a plea in bar to all counts other than the first two.
It also follows from the above analysis of the statutory provisions that no question of causation arises, or at least, that it does not arise in the same way as it does when actual harm or damage is an element of an offence or cause of action. The starting point for both the basic offence and the s 32 offence is the identification of a risk to which an employee or other person was exposed. Once that risk is identified the next question is whether the employer failed to take all reasonably practicable measures to eliminate or minimise that risk. It is the failure to take any such reasonably practical measures which sufficiently constitutes a connection between the employers acts or omissions and the relevant risk. It will often, if not always, be the case that broader environmental circumstances, or the conduct of persons other than the PCBU, have played a part in exposing employees or others to the same risk. Indeed, even after the PCBU has taken all reasonably practical measures to eliminate or minimise the risk, workers, and or others, may continue to be exposed to a risk, even a substantial risk, because of the environmental circumstances or the conduct of other actors. Moreover, the reasonably practicable measures taken by the PCBU may be rendered entirely or largely ineffectual by those external factors. For those reasons the identified risk may nonetheless eventuate.
In some cases of that kind an offence might not be committed because there are no additional measures which the employer could reasonably take to eliminate or minimise the risk. In some such cases, it might be said, in a very loose sense there is no ‘causal’ connection between the PCBU’s conduct and the exposure. In others, the failure to take a reasonably practicable measure which in the ordinary course of events might have exposed another to a risk will not do so in the face of other unrelated, overwhelming and catastrophic circumstances which could not practicably have been anticipated. However, causation in the traditional sense, is not an additional element of the offence. In cases of the kind I have described the offence is not committed because the PCBU has taken all reasonable practicable measures to eliminate or reduce the risk to which workers or others were exposed.
The burden of the appellant’s case on Ground 5 can be found in Ground 5.2 which contends that it is an element of the offence that the employer’s omission was a significant or substantial cause of the nominated people being exposed to the specified risk. That submission conflates the common law approach to causation of an event or injury with the statutory duty to eliminate or minimise risks which may never eventuate. If an employer fails to minimise or eliminate a material, in the sense that it is not fanciful or speculative, risk which could have been eliminated or reduced by a reasonably practicable measure, the duty is breached. All that remains to constitute an offence against s 32 is that a person has been exposed to that risk even if the risk also arises from the conduct of others or environmental circumstances.
In this case the other circumstance which exposed Mr Hicks and other users of the Freeway to a risk were the defective conditions of the brake. The appellant’s counsel referred to the brake failure as the ‘elephant in the room’. However far from being unnoticed, the brake failure was both a circumstance against which competence in the use of gears was a safeguard, and a problem which was exacerbated by Mr Hick’s failure to use the gears effectively.
I would respectfully adopt the approach of the Victorian Court of Appeal in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd:[9]
[9] Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 at [80]-[85].
Plainly enough, proof of a breach of s 21 of OHSA requires proof of a nexus between the act or omission of the employer and an identified risk to health and safety. But the nexus which must be proved is that which the statutory provisions themselves require, and no other.
The Act obliges an employer to do everything reasonably practicable to eliminate or reduce ‘risks to health and safety’.[10] When — as here — the alleged breach consists of an omission rather than a positive act, proof of the breach requires the prosecution to establish each of the matters set out at para 6 above. The Crown’s submission to that effect should be accepted.
[10] Section 20(1); see Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, 100 [14]–[15].
Vibro-Pile relied on decisions of the New South Wales Industrial Court which hold that the question to be addressed is
whether the defendant’s acts or omissions were a substantial or significant cause of the risk.[11]
(As noted earlier, this formulation appears in the Victorian Criminal Charge Book, which cites those decisions).
Logically, a failure to eliminate a risk can be said to cause, or contribute to, the persistence of the risk. But the statute does not formulate the issue in those terms and, in our view, the language of causation is best avoided in this context.[12] To speak of a ‘causal connection’ in this context is liable to suggest — incorrectly — that these offences require proof of a causal link between the employer’s conduct and the accident or injury (which, as we have said, will typically have triggered the investigation and prosecution).
As has been repeatedly pointed out in the authorities, proof of breach is independent of any link with injury or death.[13] Thus, the High Court in Kirk said:
It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, [the general duty] may be contravened. An obvious example would be the failure to guard dangerous machinery.
In many instances, as the plurality judgment in Kirk[14] pointed out, the specification in the charge of the measure which the employer should have taken will identify the risk being addressed. Proof that the specified measure would have eliminated or reduced that risk establishes the requisite nexus between the employer’s omission and the risk. There is no necessity to introduce notions of causation. As we have suggested, such notions are likely to lead to misunderstanding, as occurred in this case.
[footnotes in original]
[11] See, eg, State of New South Wales v O’Sullivan (2005) 143 IR 57, 74 [49]–[50] (‘O’Sullivan’) and New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) (2011) 210 IR 112, 180 [261] (‘Cahill No 2’).
[12] We note that the NSW Court of Appeal spoke of a ‘causal relationship’ between the omission and the risk: Simpson Design Associates Pty Ltd v Industrial Court of New South Wales (2011) 213 A Crim R 340, 342 [3]–[4], 360 [77] (‘Simpson Design’).
[13] Kirk (2010) 239 CLR 531, 553 [13]; Frewstal [2015] VSCA 266 [41], [126]-{127].
[14] Kirk (2010) 239 CLR 531, 553 [14].
After oral submissions, I received written submissions from both parties on the decision in Grasso v SafeWork NSW.[15] Section 32 of the Work Health and Safety Act 2011 (NSW) (the NSW Act) is in relevantly similar terms to s 32 of the Act. Mr Grasso, an engineer, was consulted on the demolition of the roof of the old Sydney Entertainment Centre in Haymarket. He provided his services through a corporate entity referred to in the judgment as GCE. The principal of the project was Lendlease and the demolition contractor was Hassarati. In the course of the demolition, part of the roof collapsed. Two workers managed to escape injury because, fortuitously, they were in protected positions at the time. It was accepted at trial, and on appeal, that the relevant risk was that demolition workers might be exposed to the risk of death or serious injury from a structural collapse of the roof at the site.[16] The trial Judge found that Mr Grasso did not eliminate or minimise that risk by failing to apply an engineering computer program to test his opinions as to the way, and order in which, the roof could be safely demolished. It was said that the application of that program would have identified load factors on load bearing elements of the roof and the risk of the buckling of those elements. The Judge found that computer modelling was reasonably practicable and that without it GCE’s advice did not eliminate or minimise the risk of a roof collapse. The Judge further found, that GCE failed to adequately communicate its advice which led to its misinterpretation in the demolition plan formulated by Hassarati. The Judge found that the breach exposed the demolition workers to a risk of death or serious injury.
[15] Grasso v SafeWork NSW [2021] NSWCCA 288.
[16] Ibid at [157].
At trial, GCE contended that the prosecution could not succeed unless it proved the workers would still have been exposed to a risk if Hassarati had followed GCE’s advice as set out in its GCE sketch. On the other hand, the prosecution contended that the critical questions were whether the measures identified in the particulars to the charge were reasonably practicable, and whether, if taken, they would have eliminated or minimised the risk of a roof collapse.
Cavanagh J in the Court of Appeal, with whom Walton J and Simpson AJA agreed, emphasised that Mr Grasso and GCE were in breach of their duties by not undertaking the computer modelling even if ultimately their advice was found to be sound. Cavanagh J went on to deal with the relationship between the elements of breaches and exposure as follows:[17]
[17] Grasso v SafeworkNSW [2021] NSWCCA 288 at [183]-[192].
183Having said that, the effect of GCE’s submissions appears not to be to challenge that finding but, rather to suggest that the identification of computer modelling as a reasonable practicable measure available to GCE goes nowhere without establishing how that would have eliminated or minimised the risk, to which the demolition workers were exposed at the time they were doing their work.
184This submission blurs the distinction between findings as to breach and necessary findings as to the causation element of the s 32 offence. If this submission is directed to the question of non-compliance under s 19(2) it fails to come to terms with the proper approach to considering the question of breach. Alternatively, it is really a submission on causation.
…
186Mr Grasso exercised his judgment and his judgment may have led him to come up with the correct advice (that is correct in eliminating the risk of an unplanned roof collapse) but that does not mean that that he took all reasonably practical steps to ensure the health and safety of persons that he knew may be put at risk from his work (being persons who would be working under the roof).
187In assessing non-compliance, the Court looks at whether the duty holder has complied with the duty imposed by the section, not whether any non-compliance actually exposed the other person to a risk whilst that other person was performing his work.
188This is similar to the approach when considering whether a person failed to take reasonable care in an ordinary civil action.
189GCE did not ensure that the health and safety of other persons was not put at risk from its work because it did not take reasonably practicable measures to test the validity of its advice (that is that the roof could be demolished in a certain way).
190It is no answer to suggest, in the context of advice, that it may have got it right (i.e. eliminated the risk) anyway.
191In my view the approach of both parties tends to blur the lines between non‑compliance and causation.
192The finding of non-compliance in respect of particular (a) was open to the trial judge and no error has been shown.
I interpolate here that those passages are consistent with the approach I have adumbrated to the relationship between breach and exposure in [36]-[40] above.
On the question of ‘causation’ Cavanagh J said:[18]
225A person commits an offence under s 32 only if the failure to comply with the health and safety duty exposes an individual to a risk of death or serious injury or illness. There must be a causal connection between the failure to comply and the exposure of persons to a risk of death or injury. This is the causation question.
226As has often been said in the context of a negligence action, the elements of breach and causation serve different functions.[19] The former imposes a forward looking role at conduct whereas the latter imposes a backward-looking attribution of responsibility for breach.
…
230As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed.
231It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause.
232Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause.
[Footnote in original]
[18] Grasso v Safework NSW [2021] NSWCCA 288 at [225], [226], [230]-232].
[19] Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [26] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
I observe for now that the above passages are expressed at a high level of generality and assume that s 32 of the NSW Act incorporates an element of causation which treats the concept of risk in the same way as an actual injury or incident.
Turning to the particular circumstances of the case, Cavanagh J noted that the trial Judge found that if a computer model had been applied to GCE’s advice, the risk of an unplanned structural collapse would have been eliminated or minimised and, secondly, that GCE’s failure to adequately communicate its advice lead to its misinterpretation and incorporation into another sketch made by an employer of Hessarati. However, the Judge made no finding that the manner of communication was in itself a breach of the duty arising under s 19(2) of the NSW Act. Cavanagh J held that the finding of breach by failing to do a computer model did not, of itself, establish that the breach exposed the workers to a risk of injury:[20]
241The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work.
[20] Grasso v Safework NSW [2021] NSWCCA 288 at [241]-[246].
With respect, it is difficult to see why the element described in the second sentence raises a question of causation at all. If the second sentence is reframed to state that the prosecution must establish that the workers were exposed to a risk which GCE could reasonably have eliminated or minimised by performing computer modelling, any question of causation is removed. The only connection which need be proved is between the risk to which a worker is exposed and the reasonably practicable measures which would have reduced that risk. The trial Judge did not find that GCE failed to take a reasonable practicable measure which would have reduced that risk and for that reason the prosecution for a breach of s 32 was bound to fail. Cavanagh J continued:
242It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown.
243In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.
244 This is evident from his Honour’s findings as follows at [344]:
‘The creation of a computer model was a reasonably practicable measure that would have allowed GCE’s advice to be tested, thereby eliminating or minimising the risk of an unplanned structural collapse. In the absence of the computer model, GCE’s advice did not eliminate or minimise the risk of an unplanned structural collapse. The exercise of Mr Grasso’s engineering judgement was fallible, resulting in the potential for the risk to come home during the course of the demolition.’
245It is correct to say that in the absence of computer modelling GCE’s advice did not eliminate or minimise the risk and thus did not ensure the health and safety as required by s 19(2) but that does not answer the question as to how or why the failure to undertake computer modelling at the time of giving the advice was a substantial cause of the risk to which the workers were exposed at the time they were doing their work, especially in circumstances in which they were not following that advice.
246Further, it is correct to say that the exercise of engineering judgment by GCE was fallible resulting in the potential for the risk to come home during the course of the demolition but there was no potential for that risk to come home whilst the workers were demolishing the roof as a result of the advice given when the workers were not following the GCE advice.

With respect, the reasons given in paragraph [245] would apply with equal force even if the reference to ‘substantial cause’ were removed so that it read, in effect, ‘how or why the risk to which the workers were exposed could have been minimised or eliminated if the computer modelling had been undertaken’. The breach of duty by GCE in failing to computer model its advice, did not expose the workers to the risk they faced on the day the roof collapsed. GCE’s sequencing advice was not shown to carry a latent risk which the modelling would have removed. Moreover, Hassarati did not adopt the demolition sequencing advice given by GCE but undertook the work in accordance with its own misinterpretation of that advice. Indeed, Cavanagh J went on to state his conclusions in a way in which did not rely on causation, in its commonly used sense, and spoke more directly about GCE’s breach not exposing the workers to risk:[21]
249In my view the trial judge erred in finding that the causation element under s 32 was established, that is, the non-compliance (being the failure to undertake computer modelling) exposed the demolition workers to a risk to their health and safety. Again, this is a different question from the breach question, being whether, looking prospectively, the workers were put at risk form the failure to undertake modelling.
250Further, the submission that the deficiency in the advice (by not making it clear) exposed the workers to a risk of death or injury does not assist the respondent without a finding of breach on this basis. However, for completeness (as the parties seemingly take a different view as to the reasons for the findings of non-compliance under particulars (a) and (e)) I will deal with that additional causation finding.
251The reason that the workers were exposed to a risk at the time they were demolishing was because they were following the QCUA booklet and the Arnold sketch. The respondent would need to establish the causal connection between the GCE advice and the methodology adopted by the workers.
[21] Grasso v SafeWork NSW [2021] NSWCCA 288 at [249]-[251].
If, contrary to my construction of s 32, I were to consider the element of exposure through the prism of causation in this case, then I would find that notwithstanding the brake defects, the failure to instruct Mr Hicks, on the effective use of gears to retard the speed of the truck when descending the Freeway, was a significant cause of the risk of collision, between the vacuum truck and other road users, arising from an inability to stop the truck, notwithstanding the brake defects.
I would dismiss Ground 5 of the appeal.
The Evidence – Mr Hick’s experience and Cleanaway Procedures
Mr Hicks received a heavy vehicle licence training from G&L heavy vehicle driving centre in June 2014. He enrolled for the training on 22 June 2014 and was trained on 23 and 24 June over roads which included descents but there was no evidence that they approximated the descent on the Freeway. His training was on an Isuzu tipper truck of three axles with a road ranger gear box of 15 speeds. He was instructed on the need to give attention to the appropriate gearing. In particular, he was instructed on how to use lower gears when on a descent but, not on the use of brakes when travelling downhill. The trainer described Mr Hicks as a very good candidate for a heavy vehicle licence.
Mr Hicks gave the following evidence about his training:[22]
[179] A. All relatively basic I would have thought, you know, It's not rocket science by any means. It's choose a gear that is appropriate for the speed limit as well as what the truck weight or the road you're on. It's all, I guess, up to the driver in a way. It's just a matter of being smart and being safe. That's basically what they teach you.
Q. What were you told about what goes into determining what is an appropriate gear for driving and going downhill.
A. Monitor your speed, your revs, the control that you have over the truck, everything that's completely normal with a licence of any variety'.
…
[180] 'Q. In the course of that training when you were driving downhill do you recall what if anything you were told about the choice of gear before the downhill descent commenced.
A. Simply select a gear that you feel it appropriate for the descent that is coming up that will hold you at a safe speed. It just doesn't really feel like anything that would be out of the ordinary. It quite standard sort of training.
Q. So back in June 2014 what knowledge did you have that told you what you would feel to be the right gear to be in when you're going down a hill.
A. It's more a matter of knowing the vehicle you're driving so understanding the revs or the speed that a gear will keep you at and then selecting the appropriate gear before you start the descent'.
[22] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.
In cross-examination Hicks agreed that, as part of his training, he had been provided a ‘vehicle awareness document’. He was asked, whether he understood what was meant by the heading ‘trucks and buses must use low gear signage’
Q. In any event can I suggest to this to you, by the time you finished your training with G&L you fully understood that that sign 'Trucks and buses must use low gear' signage meant that the driver was to put the truck in a gear that would restrain the truck at a lower applicable speed limit without the need to use the primary brake.
A. Yes'.
I pause here to make the perhaps trite observation that it is one thing to know the objective which must be achieved, i.e. the selection of a gear which will keep the speed of a heavy vehicle with the application speed limit, but it is another to know practically how to do so by selecting the gear before entering that speed zone which will allow a gear change or changes which will keep the vehicle within the speed limit having regard to the steepness of the descent.
Mr Hicks testified that he could not recall Cleanaway asking about his heavy vehicle driving experience, or his experience driving on the Freeway before the accident. It is experience of that kind which a driver must have to meet the objective stated in the vehicle awareness document on a descent such as the Freeway as it approaches the intersection where the collision occurred.
The following facts concerning the salient features of the Freeway were agreed.
1.At the apex of the descent, approximately 7.6 kilometres from the Glen Osmond Road intersection, the following signs were present:
(a)    Trucks and buses prepare to use low gear next 6 km.
(b)    Trucks and buses must use low gear next 6 km.
2.120 metres east of Crafers exit ramp and prior to the Waverly Ridge Road overpass, there were two vertically affixed signs which read, in descending order, ‘60 AHEAD’ ‘TRUCKS WITH 5 AXLES OR MORE’. (The vacuum truck driven by Mr Hicks was a dual axle vehicle).
3.On 18 August 2014, the speed limits that applied to vehicles on the down track of the South-Eastern Freeway, other than trucks with five axles or more, was:
(a)    100 km/h from the apex of the descent at the Waverly Ridge Road overpass to the Heysen Tunnels.
(b)    90 km/h through the Heysen Tunnels.
(c)    100 km/h from the Heysen Tunnels to the point 1220 metres north west of the Cross Road intersection.
(d)    80 km/h for the stretch between 1220 metres and 630 metres north west of the Cross Road intersection.
(e)    60 km/h from 630 metres north west of the Cross Road intersection to the intersection itself.
It was also agreed that there were two arrester beds on the Freeway, one before the Heysen Tunnel and 2.5 km after it.
The truck driven by Mr Hicks was a 1999 Isuzu FVR 900 model tank truck. It was a dual axle 4x2 vehicle with a seven-speed synchromesh manual gearbox. It had both exhaust and airbrakes and drum brakes on the front and rear wheels. Its waste capacity was 9000 litres.
The vacuum truck reached the speed of 151.9 km/h before colliding with vehicles at the busy intersection of the Freeway and Cross Road, Glen Osmond.
Dr Rechnitzer, examined the front brake drums of the vacuum truck and concluded from their blueish tinge that they had been significantly overheated to the extent that the brake effectiveness would have been reduced and brake fade was likely. He found that the linings of the rear brakes were very worn, down to, or through, the fixing divots. The brake drums were worn and exhibited significant grooving. The rear brake drum lining should have been replaced prior to the subject collision. He concluded, not surprisingly, that the reduced braking capacity was a factor contributing to the incident. The appellant, not surprisingly, emphasised the role played by the defective brakes in the causation of the collision, referring to the condition of the brakes as ‘the elephant in the room’.
It can be accepted that the defective conditions of the brakes exposed Mr Hicks and other Freeway users to a high risk of a collision between the vacuum truck and others. However, it does not necessarily follow, as many of the appellant’s submissions imply, that a material, in the sense of something more than a remote or fanciful risk, did not also arise from other circumstances, conduct or omissions. It is a notorious fact that the causes of industrial and other accidents are often multi-factorial. It is also a precept of workplace safety that, for that reason, multiple safeguards are necessary.
Dr Rechnitzer who had driven down the Freeway from the Stirling exit, testified that from that exit to the point of the collision the distance is of 9.3 km and the descent 440 metres. There are signs along that route limiting the speeds of, and directing heavy vehicles to use low gears. Dr Rechnitzer concluded that the ‘long and steep downhill route is clearly a problem with regard to trucks and the risk of brake fade’. He deposed that historically the Freeway is a known location for heavy vehicle speed related incidents and use of the safety ramp. Dr Rechnitzer emphasised, that it is both the length and steepness of the descent on that portion of the Freeway which poses a risk of brake failure.
A prosecution witness who was an employee of Cleanaway gave evidence of the safety concerns of employees when driving a vacuum truck down the Freeway.
The steepness and associated risks, of the Freeway is a notorious fact of which a court sitting in Adelaide can take judicial notice.
Several Cleanaway employees gave evidence of their training as new drivers. Marcus Melbourne was trained in the operation of grease traps and worked with another driver for three or four days. His training involved city driving ‘mainly on the flat’. His driving ability was not formally assessed until after he had been employed for six months.
Darren Cleary was an employee of Cleanaway for three or four years by the time of the incident. He had received a site induction when first employed but no driver training, and in particular had not been trained in the use of arrester beds. He was assigned a buddy driver for about a week after he was first employed who showed him how to use grease traps. He was unaware of any training that specifically addressed driving vacuum trucks down the Freeway.
Mr Cleary testified that he accompanied Mr Hicks for two days on truck 349, an 11000 - 12000 litre tanker truck, fitted with an automatic transmission. They drove around Tanunda or Nuriootpa on hilly roads. He had no concerns about Mr Hicks’ driving.
Heath Turner was the fleet supervisor who scheduled work for the industrial division. Risk assessments had been developed for various customer sites but he had no recollection of there being a risk assessment for the Adelaide Hills contract. He described the induction which involved the use of the buddy system. He testified that an informal judgment would be made about the competence of a newly employed driver. He was not aware of any risk assessment of driving heavy trucks down the Freeway prior to 18 August 2014.
Wayne Steed was Cleanaway’s regional manager from December 2012 to November 2014. He was not aware of any risk assessment that dealt specifically with the hazards and risks associated with driving heavy vehicles on the Freeway.
Leilia Stivell was a compliance co-ordinator in 2014. She prepared risk assessments and work instructions that were work-site specific. She identified a document headed Transpacific Risk Assessment dated 20 February 2012 which gave the following simplistic assessment of the driving of trucks.
Road hazard include distractions, speeding, inattentive driving, fatigue and other road users (vehicles, pedestrians, cyclists etc) these hazards can contribute to the risks of road accidents.
In another document a risk of collision between a heavy truck and a pedestrian was identified as ‘likely’ and the consequence as ‘significant’.
A Cleanaway document entitled ‘New Heavy Vehicle Laws on the South Eastern Freeway’ which was created after the incident referred to the need when descending the Freeway to use the ‘right gear’ for a safe descent and the expected installation of road signs which would ‘require all trucks … to use a gear low enough to limit the speed without the need to use the primary brake’.
Another Cleanaway draft safety protocol entitled ‘Quick Reference Guide TTS Wingfield Liquid Fuels Manual’ was created after the collision. It read in part:[23]
‘New fleet drivers must not drive heavy vehicles unsupervised until they have been assessed as competent by an independent assessor in the heavy vehicle driving assessment with a manual heavy rigid unit which must include South Eastern Freeway driving. Appropriate supervision of the new driver means drivers shall be accompanied by a competent driver that has a minimum two years’ experience driving and operating vacuum tanker trucks with Transpacific’.
[23] Received as P8
Ms Stivell was unaware of any policy document created before 18 August 2014 which required drivers to be assessed in relation to each vehicle within the fleet and requiring drivers to be assessed specifically on driving down the Freeway. Nor was she aware of the assessment of drivers in relation to automatic and manual gearboxes before that date.
Gregory Skinner testified that in August 2014 he was employed by Cleanaway as a trainer/assessor of new and existing drivers. He testified that he would schedule assessments of drivers depending on how busy he was. The assessment would normally occur before the driver went out in the truck but that was not always the case. He gave evidence that new drivers may accompany other drivers in a non-driving role, and he would then conduct an assessment when he became available. He could not recall whether the Transpacific heavy vehicle driver induction booklet (P9) was in use in 2014. He identified a document entitled Transpacific Driver Safety Induction (P10) which was used by him in 2014 for his assessments. It was a template document for the assessment of competencies and included tasks like:
·the start-up procedure
·safe manual handling
·safe work near powerlines
·use store and maintain vehicle equipment
·review emergency procedure checklist
·report on safety, quality and environment issues.
Mr Skinner described Cleanaway’s buddy system. He testified that the length of time a driver would be assigned to a more experienced driver may be between two to four weeks depending on his or her experience.
Mr Skinner testified that on 14 August he undertook, but did not complete, an assessment of Mr Hick’s driving ability on a truck with an automatic gear box on roads with no steep declines. The Magistrate made the following findings about Mr Skinner’s assessment of Mr Hicks on 14 August:[24]
[24] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.
[183]Greg Skinner said he had performed a driving assessment of Darren Hicks. He had been unaware how long Hicks had been employed at Cleanaway before speaking with him prior to the assessment. Hicks held a heavy rigid vehicle licence. The assessment took place in a heavy rigid vehicle fitted with an automatic transmission. The assessment had been an unplanned occurring on 14 August 2014 commencing at 10.30 a.m. As it was an unplanned assessment he had used a form intended for existing drivers rather than one intended for new drivers. It was not usual for an assessment to be undertaken unplanned. (The form used by Simmer is at tab 34 of P4).
[184]Skinner explained that the tasks listed for assessment were non-exhaustive. He said that the reference in Document 34 to 'if applicable' depended on the type of vehicle used for the assessment. For instance, ‘gear changing’ and ‘automatic transmission’. He agreed that the form contained 13 tasks with a capacity to record the outcome as 'competent'; 'further training required' and 'not yet competent'.
[185]The first task ‘Pre-departure check’ was not completed as the vehicle was already running at the time of the assessment. He said that it was a ‘discussion point only’.
[186]Under Task 2 ‘Cabin Checks’ the box marked ‘gear lever is in gear’ is marked ‘N/A’ as the truck was an automatic vehicle.
[187]Task 5 ‘Gear changing/clutch operation’ was included in the form because there were trucks in the fleet which had a manual transmission. Hicks was not assessed in relation to any of the tasks contained in Task 5. There was no assessment as to his competence or otherwise to undertake those tasks.
[188]Under Task 6 ‘Automatic Transmission’ a box marked ‘uses low gear’ is marked ‘N/A’ because ‘. . .we couldn't conduct that competency because we didn't encounter any steep hills during his assessment’.
[189]The assessment of Hicks was curtailed by virtue of the fact he was engaged in work duties that day.
[190]In relation to Task 9 ‘Engaged appropriate gear prior to turn’ is marked ‘N/A’ due to the fact that the vehicle used was an automatic not manual vehicle.
[191]Referring to the assessment summary in TPI 1337 the witness acknowledged that Hicks had been recorded as ‘competent’ in relation to Task 5, 6 and 9 despite certain of those tasks having not been assessed at all. Further the document recorded that ‘this operator has been assessed as competent to operate in all tasks’ (343). The witness conceded that the document did not accurately record the outcome of the assessment (343).
[192]The witness said that it had been his plan to undertake those tasks missed when completing the questionnaire with Hicks at a later stage (343)
[193]The witness said that he was aware that drivers that he was assessing were likely to be engaged in activities that led to them driving in the Adelaide Hills.
The Freeway Descent
The Magistrate summarised the evidence given by Mr Hicks of the descent of Freeway in the vacuum truck on 18 August as follows:[25]
[235]Hicks said that on the day in question he had been working with another Cleanaway employee, Marcus Melbourne. He had been driving his own truck. Their task was to empty residential septic waste tanks in the Adelaide Hills (428). This involved travelling up the South Eastern Freeway. Having loaded the trucks they had then commenced to descend the South Eastern Freeway. During the ascent of the South Eastern Freeway he had had the truck in 1st or 2^nd gear. The speed had been slow. He estimated about 10 or 20 km/h
[236]On the return journey at the start of the descent of the South Eastern Freeway he had been travelling in 5^th gear at a speed he estimated as 60 to 70 km/h. As he commenced the decline that speed was maintained (431). As he proceeded down the freeway the decline had got steeper. He found that the speed of the vehicle was increasing (431). The exhaust brake was on. In response to the increase speed of the truck he applied the footbrake of the vehicle. After he did so (433) ‘within a few second’ an alarm sounded. He continued to use the footbrakes. He was still in 5th gear. He was unable to change the gear down because ‘…the truck was going too fast to change down a gear so I couldn’t shift while I was using the brakes’. (434). When he had applied the brake it had not had as much impact in slowing the vehicle as he had wished. When he applied the foot brakes he had passed both arrester beds. (435). He said that by the time he had needed to use the brakes ‘to any extent’ he had passed the arrester beds. He said that he may have otherwise ‘touched the brakes to limit it 1 or 2 km/h but it was not heavy braking’.
[237]In cross-examination the witness said that he was aware that at the start of the decline the applicable speed limit for his vehicle was 100km/h (441). He had taken the decision to make the descent at a lower speed. He said that 5^th gear had ‘easily’ restrained the speed of the vehicle under 100km/h (442). He agreed that after the second arrester bed the speed 1imit changed down to 80km/h. He further agreed that after the second arrester bed (443) he had applied the primary brake because the speed of the vehicle was increasing and he was approaching the lower speed limit zone of 80km/h (444). He agreed that once he did so ‘nothing much is happening’. He agreed that it had been his decision to travel substantially under the speed limit. When he applied the brake and the alarm sounded indicating no air in the brakes he had been trying to shift the vehicle to a lower gear but had been unable to do so as the vehicle had been going too fast.
[238]In re-examination the witness clarified that at the point (450) he applied the brakes the speed of the vehicle had increased to ‘no more than 80km/h. (450). The application of the brakes had reduced the speed by ‘a very small amount’. The decline in the road had increased again and the speed of the vehicle again continued to increase. After the alarm had sounded application of the brakes had no effect on retarding the vehicle.
[25] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.

The following salient aspect of that account should be noted. First, Mr Hicks descended the Freeway in a much higher gear (5 of 7) than the gears engaged on his ascent. Secondly, on his unsuccessful attempt to change down a gear the truck speed had already increased from between 60-70km/h to about 80km/h and he had passed the second arrester bed. At that time he was fast approaching the 80km/h zone. He found it necessary to apply the footbrake to allow the change to a lower gear but the brake was less effective than he had hoped. The truck slowed only a little and sounded an alarm. Thirdly, the decline then steepened, the truck speed increased and the braking had no effect.
As I earlier observed, knowing in advance at what point during a descent gears should be changed down, so that the truck can slow as it enters lower speed zones and can, when necessary, safely come to a complete stop, requires experience or training. Plainly Mr Hicks had attempted to change down from 5^thgear when it was too late to do so and 5^th gear was too high a gear to limit the trucks speed to 60km/ hour.
There was evidence in the form of the concerns of other drivers, the evidence of Dr Rechnitzer and the location of the two arrester beds that the descent on that part of the Freeway was particularly long and steep relative to other major Adelaide roads. Mr Hicks did not have the experience, nor any instruction or training tailored to the vacuum truck he was driving on the Freeway, to assess at what points along the descent he should progressively engage lower gears. On Mr Hicks’ own evidence, it was not possible to change from the 5^th gear to a lower gear when the truck was travelling between 60 kph to 70 kph. Cleanaway did not adduce evidence or suggest that that was due to a latent defect or was, for any other reason, unexpected.
True it is that the brake defect contributed to the inability to engage a lower gear but it will be remembered that at the apex of the descent there were signs warning truck drivers to use low gears, which were understood by Mr Hicks to mean gears low enough to keep the truck within the applicable speed limit without using the brakes.
Ground 2 – Reliance on Dr Rechnitzer
The report of Dr Rechnitzer’s, received as his evidence in chief, stated:[26]
‘it would have been appropriate and necessary for Cleanaway to ensure the competence of the novice HR driver Mr Hicks, by first arranging training in the form of Mr Hicks being a passenger with a competent and experienced Cleanaway driver in the Isuzu truck, travelling down the subject route, to be shown the correct safe driving practice (correct low gear and no breaking to slow the vehicle (except in an emergency))’
‘reasonably practicable steps would have included: ensuring the roadworthy condition of the heavy vehicle and in particular the brakes; instruction and training to the driver on how to travel safely down the route including low gear selection without need of brakes except in an emergency; and emergency use of the runoff safety ramps. Preferably such training should have been with an experienced driver . . .’
‘it would have been practical, and indeed appropriate as part of the competency assessment of a new driver for Mr Skinner to not confine his assessment just to the ad-hoc unplanned assessment and include (and on the next days as necessary):
[26] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 at [298].
I interpolate here that Mr Hicks too accepted as ‘standard’ the selection of an appropriate gear and said that he ‘understood the revs or the speed that a gear will keep you on’.
The Magistrate accepted, as logical and consistent with other evidence, the following opinion of Dr Rechnitzer of his report:[27]
Manual synchromesh gearbox Transmission: A general guide for selecting the appropriate low gear is usually the same gear (or lower) that would be used to travel up the hill. This is also noted in the post incident SA video ‘How to descent the South Eastern Freeway Safely’. The correct gear should hold the truck at below the specified speed limit, and not speed up going down the hill without using the brakes at all.
If the driver finds he has not selected the right low gear (i.e. the vehicle is speeding up), he should then use the brakes to come to a stop, and re start in a lower gear. In an emergency the driver should still try to change down gears, and have the training to do so (e.g. by matching engine and road speeds; and / or using double de‑clutching).
[27] Dr George Rechnitzer, Final Report on Fatal Collision (10 August 2016) at page 37.
Dr Rechnitzer’s opinion was supported by a footnote reference to the ‘USA 2005 Model Commercial Drivers Licence Manual’ which stated:
Before Starting Down a Hill. Slow down and shift down to a speed that you can control without using the brakes hard. Otherwise the brakes can overheat and lose their braking power.
Downshift before starting down the hill. Make sure you are in a low enough gear, usually lower than the gear required to climb the same hill.
It is a true and necessary implication of that direction and Dr Rechnitzer’s opinion that the gear selected must be low enough to control the vehicle within safe speeds throughout the descent. Dr Rechnitzer explained why in the passages of his cross‑examination set out in the following paragraphs of the Magistrate’s reasons:[28]
[205]Your Honour, the whole principle is one, you've got the exhaust brake, which gives you a certain retardation, and then you need to be in a low enough gear - so 60 - so whichever speed you pick, whether it's 40 or 60 the whole idea is you don't use your primary brake at all, that's the whole idea so you don't run the risk of brake fade and losing control if you have to stop for example in a hurry-’
[206]‘. . . that they can travel down a hill like that in a gear that will maintain the speed without using the service brakes. The whole point is to maintain control without using the service brakes. That' s why it says ‘use low gear’.
[208]‘... The whole point was that it had to hold the vehicle for all the distance, so I'm not sure whether I'm inferring too much from mishearing the question, but the point is, it's not whether it held it for 6 km and then didn't after that. The point is it has got to hold it for all the distance. You can't lose the brakes at all at any time, so I'm not sure whether the question was holistic or limited, that's my point. That's why I wanted to rehear it because I might have misheard it, but that's the critical point. It's no use saying 'Okay, held it for 6 km, then thereafter sped up because it wouldn't hold it for, you know, a different gradient'. So that's my only caveat that I want to make. It's an important one, though.
[28] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.
It is obvious enough from that evidence that the gear selected at any point in a descent must be able to hold the vehicle not only at a speed appropriate to that part of the descent but also of a speed which will allow a change into a lower gear, without using the foot brake, when it becomes necessary or appropriate to do so. No evidence contradicting Dr Rechnitzer on this topic was adduced by Cleanaway.
Particular attention was devoted in cross-examination to other opinions expressed by Dr Rechnitzer in his report.
It was put to Dr Rechnitzer in cross-examination that because he was not an experienced truck driver and had not performed a test to determine the gear which Mr Hicks should have first selected, he could not opine that the fifth gear selected by Mr Hicks was too high. In that context it was put to Dr Rechnitzer that on Mr Hick’s own evidence the truck maintained the speed of 75-80 kph over most of the descent. Dr Rechnitzer accepted that his opinion that no higher gear than 4^th should have been selected was a guess.
All that may be accepted but the point of Dr Rechnitzer’s evidence was that the gear should generally be no higher than the gear used on the ascent, and that it should be low enough to constrain the speed within safe limits throughout the descent. Mr Hick’s did not adhere to these rules because he was not trained on how to do so. Dr Rechnitzer’s opinion on those rules of safe gear selection was not contradicted. That evidence, and the evidence of Mr Hicks’ inability to change down a gear, in the absence of evidence providing an alternative explanation for the inability to engage a lower gear (other than the brake failure which was the very risk which the low gear is calculated to guard against) strongly supported an inference that the 5^th gear selected by Mr Hicks was too high a gear in which to commence the descent. The failure to train Mr Hick’s on how and at what point on the descend to engage a sufficiently low gear therefore exposed Mr Hicks, and others, to a risk of injury from a collision because the braking power of the truck might not be adequate to slow or stop the truck.
The Magistrate therefore correctly concluded:[29]
I accept the evidence of Dr Rechnitzer regarding the circumstances of the incident of 18 August 2014. In particular that the vehicles reduced braking capacity due to defective brakes was ‘exacerbated’ by the fact that the vehicle was in fifth of seven gears resulting in little retardation from engine braking meaning the vehicle could 'run away' and reach high speeds. This conclusion accords with Dr Rechnitzer’s observations of the condition of the brakes and the account given by Hicks. It is apparent from Hicks’ evidence that despite the fact he had selected fifth gear which had initially held the speed of the vehicle, once the gradient increased the speed of the vehicle was not constrained but increased. This caused Hicks to apply the brakes along with the fact the 80km/h zone was approaching. After this the brakes failed and the vehicle was then unrestrained (both by brakes and gears). It became out of control.
[29] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 at [241].
The appellant, by Ground 2, contends that the Magistrate erred in admitting the evidence of Dr Rechnitzer or alternatively giving it any weight because his opinions were not based on any specialised knowledge, study or research undertaken by him. Dr Rechnitzer has an Honours Degree in civil engineering from Monash University and a Masters of Engineering Science at Melbourne University. He obtained his Doctorate of Philosophy in Engineering from Monash University. He has undertaken a course in Crash Analysis and Reconstruction. He is the Adjunct Associate Professor in Transport and Road Safety Research at the University of New South Wales and a panel member of the Safety Institute of Australia. He has presented at over 70 conferences on the subject. He has worked for in excess of 30 years as a private consultant on work place and vehicle incidents. He has given evidence often in Supreme Courts and County Courts. Dr Rechnitzer has carried out and undertaken projects which have considered risk factors and safety measures for transport fleets. It is not surprising that the Magistrate accepted Dr Rechnitzer’s qualifications to give opinion evidence on the question of the safe management of trucks on roads including long steep descents like that of the Freeway and on the proper training for the drivers of those vehicles.
The appellant’s submissions fail to recognise that Dr Rechnitzer’s expertise on the safety measures which are appropriate and reasonably practicable in the management of heavy vehicle fleets is not dependent on him having the expertise to drive heavy vehicles.
As we have seen, the Magistrate relied on Dr Rechnitzer’s evidence as to:
1.the need to select gears appropriate to the descent which will restrain a heavy vehicle within the applicable speed limit without braking.
2.the mechanisms which caused the collision.
3.the training that should have been provided to Mr Hicks and the assessment of his competence to drive a vacuum truck down the Freeway including low gear selection.
The appellant complains that the Magistrate erred in admitting or relying on Dr Rechnitzer’s evidence because Dr Rechnitzer:
·had never travelled down the Freeway in a vehicle like the vacuum truck.
·had never driven a heavy vehicle or had a heavy vehicle driver’s licence.
·had never been a heavy vehicle licenced assessor or trainer.
·did not purport to have any knowledge of or base his opinion on general industry practices, standards, guidelines or analysis.
·was not aware of the content of the legislative scheme the training, assessing and certifying the competence of the heavy vehicle drivers.
·was not aware that Mr Hicks had been trained and assessed as competent to drive all manual and automatic transmission heavy vehicles he might be called on to drive.
·that he was not qualified to do and had done no brake fade analysis.
·did not know which gear would have held the vacuum truck to a speed of 60kph and did not know the speed to which it would have been held in 5^th gear.
·Asserted that Mr Hicks should have been instructed to travel down the Freeway at 60kph even though the speed limit was 100kph for his vehicle without researching the reasons for the imposition of that limit.
·agreed that he relied on his instructions that Mr Hicks had used the brakes to control the speed all the way down the Freeway.
·had no knowledge of the statutory licencing the assessment regime.
I observe here that the prosecution did not rely on Dr Rechnitzer’s opinion that the appellant should have instructed Mr Hicks to drive down the Freeway in a gear that would hold the speed of the truck at 60kph or less.
The Magistrate explained that notwithstanding some valid criticisms of Dr Rechnitzer’s opinions he accepted the ‘correctness and reliability of the evidence given by [Dr Rechnitzer] as to the appropriate safe driving methods; the risk posed by the South Eastern Freeway to heavy vehicles and the other opinions sought to be relied upon by the prosecution’.[30]
[30] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 at [227].
As I earlier observed the Magistrate relied primarily on Dr Rechnitzer’s opinion, which in the Magistrates view had not been undermined by such valid criticisms as were made of other views expressed by Dr Rechnitzer, as to the need to select the gear which maintained safe speeds throughout the descent without the use of brakes. The appellant’s criticisms of Dr Rechnitzer did not detract from the weight of his evidence on that critical question. Dr Rechnitzer’s training, research and experience allowed him to give that opinion even though he did not hold a heavy vehicle licence, had not driven a heavy vehicle down the Freeway and was not an assessor or trainer of heavy vehicle drivers. Nor was Dr Rechnitzer required to understand the contents of the legislative licencing scheme and the licence which Mr Hicks had obtained. Dr Rechnitzer’s opinion was based on the general principle that the gear selected for a descent should be no higher than the gear used on the ascent and Mr Hicks’ own evidence that the 5^th gear did not keep the vacuum truck within the speed limit and did not allow a change into a lower gear which might have been able to do so.
Nor was it necessary for Dr Rechnitzer to know the highest gear at which the truck could have safely negotiated the downhill descent. He had sufficient experience to give his opinion as to the general principle which would govern the gear selection. The appellant’s criticisms of Dr Rechnitzer’s opinion that Mr Hicks should have been instructed to travel down the Freeway at no more than 60kph are misplaced for several reasons. First, neither the Magistrate nor the prosecution relied on that opinion. Secondly, and in any event, the criticism that Dr Rechnitzer was unilaterally suggesting a speed less than the speed limit for the area conflates the maximum speed limit which a Road Authority might impose with the safe speed for a particular vehicle in particular circumstances. That it is a road traffic offence to drive at a speed greater than 100kph does not entail the conclusion that driving a particular vehicle at a speed less than 100kph is not a reasonable safety precaution.
The criticism that Dr Rechnitzer had not done a brake fade analysis is premised on arguments as to causation which on a proper construction of the sections does not arise for the reasons I have given. In any event it was common ground that there had been a brake failure. It does not matter that Mr Hicks had not found it necessary to use the primary brake control for much of his descent and only attempted to do so when he could not engage a lower gear closer to the intersection.
Cleanaway submits that the prosecution resiled from any allegation that Mr Hicks ‘had driven other than competently down the Freeway on the day in question’. That is not so. The prosecution only disavowed reliance on the suggestion that Mr Hicks was incompetent generally but they maintained the allegation that he had not engaged a low enough gear during his descent. The appellant’s contention that it was never put to Mr Hicks that he had selected the wrong gear is also misplaced. Mr Hicks was not charged. Mr Hicks was not a party. On the prosecution case his evidence was relevant only as to the absence of any particular training about gear selection for a vacuum truck on the Freeway and his account of how he drove the truck down the Freeway.
Nor is it to the point that the brakes would have to be applied even if a lower gear had been selected in order to stop at the Cross Road intersection. The point is that in order to minimise the risk that the brakes will not supply adequate retardation to bring the truck to a stop is an appropriate safe measure on which Mr Hick’s ought to have been instructed to select gears throughout the descent which minimise reliance on the primary brakes to slow the truck or bring it to a standstill.
Ground 3
By Ground 3 the appellant complains that the Magistrate erred in relying on draft documents, referred to in [86]-[87] above, which had been produced after the incident as evidence of the capacity and practicability of the appellant to implement measures to minimise risk. The Magistrate relied on that evidence only as evidence of what might have been done. The Magistrate had regard to the documents as follows:[31]
294The defence position is that these documents are of 'zero' probative value as they were created after the incident and do not advance the prosecution case (see para. 73 and 74 of the defence closing submissions). They are described as ' a distraction'. (see para. 75). At para.33 to 34 of Attachment A to the defendant's closing submission reference is made under the heading 'Hindsight Eschewed' to the High Court decision in a particular judgment of his Honour Hayne J Vairy v Wyong Shire Council (2005) 223 CLR 422. The defendant asserts that 'post incident measures taken, if relevant at all, will only be relevant to demonstrate what might have been done rather than what should have been done.
…
296I do not agree however, that the evidence has no probative value. Whilst the creation of these documents must not be treated as any form of admission by the defendant, and cannot be treated as evidence of what should have been done, they nevertheless provide evidence of what might have been done. To that extent they demonstrate the capacity of the defendant company to put in place measures of the kind alleged to be reasonably practicable by the prosecution. They provide evidence of the availability of the measures alleged.
297In my view the conclusion is also available beyond reasonable doubt that the failure to take the identified measure would have reduced the risk (that is the possibility of death or serious injury). I am satisfied that inference is readily open. An assessment by the defendant itself of the competence of the driver Hicks to perform the identified task would have given the defendant direct knowledge of his level of competence to undertake those tasks. The assessment may have revealed that he was indeed competent to undertake the tasks. It may also have disclosed that he was not competent to undertake those tasks in the sense that deficiencies which could have been addressed were revealed. Until the defendant conducted such an assessment however, its knowledge of Hicks' competence to undertake those tasks was limited to the fact he had satisfied the examiners and obtained an unrestricted licence. The suggested measure would have provided the opportunity to check for any deficiencies in the driver's competence to undertake the tasks. It would have provided a safe guard to the defendant before Hicks was assigned tasks on 18 August 2014. By failing to take that step the defendant failed to minimise the risk. It failed to minimise the possibility of death or serious injury as a result of vehicular collision.
[31] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.

Nonetheless, the appellant contends that because the measures were simply contemplated and never implemented, they were ‘no more than pieces of paper with writing on them’. That is plainly not so. The proposals were put up for consideration by the very PCBU which employed Mr Hicks. They are evidence of what Cleanaway thought, at the very least, may be possible. Their existence cast an evidentiary onus on Cleanaway to adduce evidence as to why the proposals were not reasonably practicable. In any event, the proposals are, to a large extent, obvious measures. Cleanaway had a system for assessing drivers in place through Mr Skinner. The deficiency was that it was deployed irregularly. It was not effectively implemented in a timely manner before Mr Hicks set off in a heavy vehicle with a manual gear box on a descent which had particularly high risks and which required a well trained or experienced driver.
Ground 4
By Ground Four Cleanaway complains that the Magistrate’s conclusion that all reasonable practicable measures were not taken was not supported by the evidence. The Magistrate concluded that the training and instruction which Dr Rechnitzer testified ought to have been given, and which was particularised in the charge, was reasonably practicable:[32]
[309]I have taken this factor into account. There is no evidence regards the cost of the suggested measures. However given the findings I have already made in relation to each charge I am satisfied beyond reasonable doubt the associated costs would not be grossly disproportionate to the magnitude of the risk. There was a genuine possibility of the risk as evidenced by the incident itself. The degree of harm that might result was extreme. The defendant company new or ought to have known of the risk and new or ought reasonably to have known that the driver Hicks although the holder of an unrestricted heavy vehicle licence under the statutory scheme had only recently obtained that licence and lacked practical experience in the driving of a manual heavy vehicle in particular and the driving of heavy vehicle on the South Eastern Freeway. Furthermore the defendant company had in place resources to undertake the measures which would have minimised the risk.
[310]Taking all of these matters into account I am satisfied beyond reasonable doubt the suggested measure in relation to each count was one that a reasonable PCBU in the position of the defendant would have taken. They were obvious, rudimentary and necessary before the driver Hicks was assigned his tasks on 18 August 2014. They are in my view steps that any reasonably PCBU would have taken.
[311]In coming to this conclusion I have taken into account the defendant’s argument concerning ‘industry standards’ and specifically whether other PCBUs have been shown to have taken the measures alleged. There is no evidence on this topic. However the absence of that evidence does not cause me to alter my finding that the measure was ‘reasonably practicable’ applying the criteria contained in s.18 of the Act.
[32] Commonwealth: Comcare v Cleanaway Operations Pty Ltd(ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54.
The evidence of the appellant’s own employees as to the systems which were in place demonstrate the reasonable practicability of providing training of the kind described by Dr Rechnitzer. The Freeway was not just any other road in the greater Adelaide metropolitan area. It has its unique challenges and risks which are well known to motorists who have used it and were described in the evidence of Dr Rechnitzer. The appellant had trainers and assessors available to it. If there was some reason why it was not reasonably practicable to engage one or more of them to give instructions to Mr Hicks on proper gear selection at some time from his employment up until the morning of the 18^th, it was for the appellant to adduce that evidence.
The appellant interweaves within many of its submissions reliance on the fact that Mr Hicks had been granted a heavy vehicle licence. The effect of the grant of that licence was to permit him, in the sense that it was not a criminal offence, to drive heavy vehicles unaccompanied by a more experienced driver. In that sense licensing is a minimum requirement. It is everyday experience of those who have learnt to drive, or who have played any part in teaching others to drive that, licensing marks the commencement of a period of honing skills and amassing experience as an unsupervised driver. It is a minimum requirement.
Conclusion
I would allow the appeal with respect to the convictions on counts 3 to 8. I would otherwise dismiss the appeal.