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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] SASC 52
Decision Date: 26 May 2022

CaseChat Overview and Summary

Cleanaway Operations Pty Ltd appealed against a decision of a magistrate in the South Australian Magistrates Court to convict it of breaches of work health and safety legislation. The convictions related to incidents in which two of its drivers, Mr Hicks and Mr Hanel, drove on a downhill section of the Southern Expressway in South Australia without engaging their truck’s retarder. The appellant submitted that the convictions should be quashed on the basis that it had taken all reasonable steps to ensure that its drivers engaged their truck’s retarder when travelling downhill, and that it was not reasonably practicable for the drivers to engage the retarder while travelling downhill at certain speeds. The respondents submitted that the appellant had not taken all reasonable steps to ensure that its drivers engaged their truck’s retarder when travelling downhill. They submitted that there were alternative means by which the appellant could have ensured that the drivers engaged their retarder, including by installing a retarder interlock device which would prevent the driver from moving the gear stick without engaging the retarder. The court held that the appellant had taken all reasonable steps to ensure that its drivers engaged their truck’s retarder when travelling downhill. It held that it was not reasonably practicable for the drivers to engage their retarder while travelling downhill at certain speeds, as doing so would have been unsafe. The court allowed the appeal and quashed the convictions on counts 3 to 8.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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