Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare)

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.