Dial a Tow Australia Pty Ltd v Campbell - [2024] SASCA 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DIAL A TOW AUSTRALIA PTY LTD v CAMPBELL
[2024] SASCA 151
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
19 December 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY
Application for permission to appeal against a decision of the South Australian Employment Tribunal (SAET).
The appellant was found guilty by a Deputy President Magistrate (‘DPM’) of the SAET of breaching s 32 of the Work Health and Safety Act 2012 (SA) (‘WHS Act’). The DPM found that it had failed to ensure the health and safety of its employee, Mr Ravlich, who was killed on 14 March 2018 when he was crushed by a moving tilt tray attached to a tow truck operated by the appellant.
The appellant appealed to the Full Bench of the SAET. The Full Bench dismissed the appeal, which was by way of rehearing. It determined the DPM did not err in concluding that Dial A Tow Australia Pty Ltd (‘DAT’) had breached its duty to take all reasonably practicable steps to eliminate or minimise risks to the health and safety of its workers under ss 17–19 of the WHS Act.
The appellant raised four questions of law on appeal to this Court:
1. Was the ultimate conclusion available on the facts as found and undisputed?
2. Did the majority judges provide adequate reasons for their decision?
3.Did the majority judges err by failing to address the correct question posed by s 19 of the WHS Act?

4. Was the appellant denied procedural fairness?
The first and third questions depended on the interpretation of the term ‘reasonably practicable’. They related to whether the prosecution established beyond reasonable doubt that it was reasonably practicable for the appellant to have adopted an engineering measure that incorporated a pressure sensitive device in the crush zone.
Held (per Livesey P and Bleby JA) allowing the appeal and remitting the matter to the Full Bench for hearing and determination:
1.Question 1 is answered ‘yes’. It was open on the facts found by the majority, and the uncontested evidence, to convict DAT on the basis that it had failed to adopt a reasonably practicable measure, being the implementation of a pressure sensitive device in the crush zone.
2.Question 2 is answered ‘no’. The majority ultimately failed to address an important part of the evidence that was relevant to the correct question in its specific application to DAT. In this regard, its reasons were inadequate.
3.Question 3 is answered ‘no’. The majority’s treatment of the evidence of a pressure sensitive device was sufficient to indicate that they approached the question by considering whether a pressure sensor…

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: [2024] SASCA 151
Decision Date: 19 December 2024

CaseChat Overview and Summary

Dial a Tow Australia Pty Ltd (DAT) appealed to the Full Court of the Supreme Court of South Australia against a decision concerning its alleged failure to ensure the health and safety of its employees. The dispute arose from the death of an employee, Mr Ravlich, who was caught in a crush zone on a newly designed tilt tray tow truck leased by DAT. The core of the prosecution's case was that DAT had failed to install a pressure-sensitive device, which it was argued was a reasonably practicable measure to prevent such a fatality.

The legal issues before the Full Court included whether the majority judges of the appeal bench provided adequate reasons for their decision, particularly in relation to the interpretation and application of the term "reasonably practicable." DAT contended that the majority failed to address or adequately address several key arguments raised on appeal, including the prosecution's alleged failure to prove the practicability of the engineering measure in question, the absence of evidence of industry practice, and the appropriateness of seeking advice from the truck's manufacturer, AHRNS Handling Equipment Ltd.

The Full Court acknowledged the well-established principle that a judicial tribunal is required to expose its reasoning on points critical to the contest between the parties, with the extent of reasons depending on the specific case. The Court noted that while not every detail of reasoning needs to be articulated, it is essential to explain how critical points were resolved. The Court observed an overlap between DAT's complaints regarding the adequacy of reasons and issues previously discussed concerning the interpretation of "reasonably practicable." Specifically, the Court considered DAT's argument that the prosecution had not proven the practicability of the proposed engineering measure, especially in the absence of evidence of industry standards or a recommendation from the manufacturer.

The Full Court answered the third question of law in the negative, concluding that the majority judges did not provide adequate reasons for their decision. Consequently, Ground 3 of the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Relevantly, the trial before the DPM and the appeal to the Full Bench concerned whether, in failing to install a pressure sensitive device, DAT had failed to ensure, so far as was reasonably practicable, the health and safety of its employees. The first and third questions of law raised by DAT on this application concern the interpretation and application of the term ‘reasonably practicable’.Background DAT operates a tow truck business providing roadside, trade, accident, and general towing services. In providing those services it leases tilt tray tow trucks. The truck the subject of this appeal differed from traditional tilt tray tow trucks and trucks otherwise leased by DAT. It was manufactured by AHRNS Handling Equipment Ltd (AHRNS) in November of 2016. At the time of Mr Ravlich’s death, it had been leased by the applicant for approximately six weeks. The distinctive feature of the truck pertained to the position of its tilt tray relative to its vertical headboard. Most tilt tray tow trucks have a vertical headboard fixed to the end of the tilt tray, adjacent to the truck’s cabin. Toolboxes are fixed to the tray behind the headboard. When the tilt tray is moved, the headboard and toolboxes move with the tray as a single unit. The truck the subject of the charge featured a different design. The vertical headboard was not fixed to the tilt tray. It was fixed behind the cabin of the truck. The toolboxes were then attached to each side of the headboard, facing towards the tray. This allowed the tilt tray to move away from the fixed headboard and toolboxes, leaving the toolboxes in place. This difference in design had an advantage in that it facilitated tow truck deliveries to areas with limited overhead space. Mobility of the tilt tray independently from the truck’s other apparatus ameliorated the risk of the headboard striking something overhead and enabled the tilt tray to reach a height sufficient for loading or unloading its carriage. The design also carried a significant disadvantage. This was that tilting the tray necessarily created space between the tray and the headboard, from where the toolbox was accessible. At any time while the tray was returning to its position adjacent to the truck’s cabin, that space constituted a crush zone. At the time of Mr Ravlich’s death, this design was relatively new. Four signs were placed within the crush zone. Those signs warned of danger, a crush zone, a direction to keep clear, and a direction to keep clear while the engine runs. On 14 March 2018, another employee of DAT was operating the truck with Mr Ravlich to deliver a van to premises in Dry Creek. DAT had employed Mr Ravlich for eight days. Mr Ravlich was undergoing training. After the workers had unloaded the van from the tilt tray, it was necessary to retract the tray. The other employee took responsibility for this. This employee was standing away from, but near to, the truck. He held a remote control that moved the tray. Mr Ravlich was returning tools to the toolbox on the passenger side of the truck. He had to enter the crush zone to do so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We would answer the third question of law, ‘no’. We would dismiss Ground 3 of the appeal.Question 2: Did the majority judges provide adequate reasons for their decision? DAT complained that the reasons of the majority failed to address, or adequately address, various contentions raised on the appeal and give adequate reasons. It is well understood that a judicial tribunal is required to expose its reasoning on the points that are critical to the contest between the parties.[75] As to the extent of the reasons required, in Resi Corporation v Munzer,[76] Lovell J explained:[77]“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”.[78] While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.[79](Footnotes in original)[75] DL v The Queen (2018) 266 CLR 1 at [131] (Nettle J).[76] [2016] SASCFC 15.[77] Resi Corporation v Munzer [2016] SASCFC 15 at [71].[78] Keith v Gal [2013] NSWCA 339 [110].[79] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 [40]. His Honour also observed that it is important that the reasons be read in their entirety and in the context of the manner in which the cases were presented at trial.[80] [80] Resi Corporation v Munzer [2016] SASCFC 15 at [72]. DAT gave eight particulars to this ground, numbering 2.1-2.8. The parties first addressed Particulars 2.1, 2.4, 2.5 and 2.6 together. These assert that the majority:2.1failed to address or adequately address the appellant’s contention that the prosecution was required to and had failed to prove that it was reasonably practicable for the appellant to implement the particular engineering measure the subject of the charge, in the absence of evidence that it was industry practice, or evidence or any finding that the measure would have been recommended to it had it sought advice;…2.4failed to address the unchallenged evidence that the appropriate person from whom advice as to any engineering modifications should have been sought was AHRNS and that it would be inappropriate to modify the vehicle otherwise than in accordance with their recommendations;2.5failed to explain how or find that the particular engineering measure the subject of the charge was or would have been recommended to the Appellant had it acted reasonably;2.6failed to address or adequately address the evidence and argument that AHRNS never recommended the charged measure after the accident, the provisional aspect to the conclusions expressed by Mr Kroon and the absence of evidence supporting his assumption as to the cost of the measure. For reasons which we will develop, there is an overlap between these complaints and some of the issues discussed above in the context of Question 3. As to 2.1, Calligeros DPJ identified DAT’s submission that the absence of any evidence of an industry standard for this design issue was the ‘major deficiency’ in the prosecution case and that there was no evidence that if DAT had sought advice, a pressure sensitive device would have been suggested.[81] He also identified the submission of the respondent that the absence of evidence on this topic was not surprising, as the design was novel.[82] He noted that it was not put to Mr Kroon in cross-examination that the design was not novel, or that his opinion failed to have regard to industry standards.[83][81] Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [135]; [154].[82] Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [140].[83] Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [189].

Ratio Decidendi

Legal Principle Established

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