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 was a reasonable and practicable measure for DAT to have implemented.

Held (per S Doyle JA) granting leave to appeal but dismissing the appeal:

1.      Grounds 1 and 3 are dismissed, agreeing with the joint reasons of Livesey P and Bleby JA.

2.      Ground 2 is dismissed. The majority’s reasons for the conclusion they reached were adequate.

3.      Ground 4 is dismissed. There was no denial of procedural fairness.

Work Health and Safety Act 2012 (SA) ss 32, 19, 18, 17; South Australian Employment Tribunal Act 2014 (SA) s 68; Occupational Safety and Health Act 1984 (WA) ss 3(1), 19(1); Criminal Procedure Act 1921 (SA) s 158(1)(a), referred to.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Lee v Lee (2019) 266 CLR 129; Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; Thorne v Kennedy (2017) 263 CLR 85; Warren v Coombes (1979) 142 CLR 531; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Resi Corporation v Munzer [2016] SASCFC 15; Keith v Gal [2013] NSWCA 339; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212; Weissensteiner v The Queen (1993) 178 CLR 217; DL v The Queen (2018) 266 CLR 1; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492, considered.

DIAL A TOW AUSTRALIA PTY LTD v CAMPBELL
[2024] SASCA 151

Court of Appeal – Criminal:  Livesey P, Doyle and Bleby JJA

1. LIVESEY P and BLEBY JA:  On 24 March 2022, a Deputy President Magistrate of the South Australian Employment Tribunal (‘the DPM’) found the appellant Dial A Tow Australia Pty Ltd (‘DAT’) guilty of one count of breaching s 32 of the Work Health and Safety Act 2012 (SA) (‘WHS Act’). The DPM found that DAT had failed to ensure the health and safety at work of its employee, Mr Lee Ravlich, who was killed on 14 March 2018 when he was crushed by a moving tilt tray attached to a tow truck operated by DAT.

2. DAT appealed to the Full Bench of the South Australian Employment Tribunal. That appeal lay by way of rehearing.  On 28 June 2023, the Full Bench by majority dismissed DAT’s appeal. The majority held that the DPM did not err in concluding that DAT had breached its duty to take all reasonably practicable steps to eliminate or minimise risks to the health and safety of its workers, including by engaging an expert to install a pressure-sensitive device in the fixed headboard of the truck.

3. On 18 July 2023, DAT filed an application for permission to appeal to this Court. Pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA), an appeal to this Court lies by permission on a question of law only. On 18 September 2023, the President of the Court of Appeal directed that the question of permission was to be heard together with the hearing of the appeal proper. There was then some delay occasioned by issue being taken with the formulation of the grounds of appeal and the requirement to confine the appeal to questions of law. The Further Amended Grounds that were filed on 27 May 2024 articulate the following questions of law:

   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 applicant denied procedural fairness?

4. Section 32 of the WHS Act makes it an offence where a person has a health and safety duty, fails to comply with that duty and the failure exposes an individual to a risk of death of serious injury or illness.

5. Section 19(1) establishes a primary duty of care of a person conducting a business or undertaking:

   19—Primary duty of care

   (1)A person conducting a business or undertaking 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.

6. Section 18 addresses what is reasonably practicable in ensuring health and safety:

   18—What is reasonably practicable in ensuring health and safety

   In this Act—

   reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

   (a)     the likelihood of the hazard or the risk concerned occurring; and

   (b)     the degree of harm that might result from the hazard or the risk; and

   (c)     what the person concerned knows, or ought 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.

7. Section 17 addresses the content of a duty imposed on a person to ensure health and safety:

   17—Management of risks

   (1)     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, to minimise those risks so far as is reasonably practicable.

   (2)A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

8. 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

9. DAT operates a tow truck business providing roadside, trade, accident, and general towing services. In providing those services it leases tilt tray tow trucks. 

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. Mr Ravlich went behind the other employee and out of his sight. The employee used the remote control to angle the tilt tray downwards and horizontally towards the truck’s cabin. He was watching the truck. He was unaware that Mr Ravlich was in the crush zone. Mr Ravlich was crushed between the moving tilt tray and the headboard.

    The charge and the findings of the DPM

18. Following an investigation, SafeWork SA laid a complaint against DAT of a failure to comply with a health and safety duty, contrary to ss 19 and 32 of the WHS Act. Relevantly, it particularised the charge as follows:

    1.6The defendant failed to ensure so far as was reasonably practicable the health and safety of the worker in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to the health and safety of the worker:

    a.     adopting an engineering measure that stopped the tray top from moving once it reached the proximity of the headboard and required the operator to return the tray top to its resting position manually in a position adjacent to the crush zone; or

    b.    adopting an engineering measure incorporating pressure sensors on the inside edges of the crush zone that would operate to stop the movement of the tray top if there was a person or other hazard within the crush zone.

    c.     … ;

    d.    removing the storage areas from the crush zone and installing them at a location that did not pose a risk to workers.

19. The DPM found the charge proved beyond reasonable doubt in respect of Particular 1.6.b. He found:[1]

    In my view, the installation of a pressure sensitive device is a reasonably practicable measure that could and should have been implemented. The cost of a retrofit installation is not grossly disproportionate to the risk, as provided by s 18 of the WHS Act.

    [1]     Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36 at [94].

20. The DPM did not find the other particulars to be made out. There being no cross-appeal, the Full Bench on appeal was concerned only with the finding of guilt in respect of this particular.

21. The DPM’s reasons were relatively brief. Relevant to the appeal to the Full Bench and to this appeal, the DPM had regard to the following evidence and made the following findings. First, he noted that following the death of Mr Ravlich, a Prohibition Notice was placed on the use of the tow truck until revised control measures to eliminate or minimise the risk of workers becoming trapped were implemented. He explained what then happened:[2]

    The tow truck was returned to AHRNS who trialled various modifications over several months. Modifications were not approved by Safework SA for the purpose of the Prohibition Notice being removed until such time as a modification was installed which allowed the tilt tray to be returned to its resting position by use of the remote control only until the leading edge was about 60 cm from the headboard. At that point, the operator was required to stand at the side of the truck near the headboard and to return the tray by using one hand to press a button switch affixed to the side of the tow truck, and using the other hand to operate either the remote control or another button switch which was placed nearby also on the side of the tow truck. That measure did not require the operator to enter the crush zone, but rather to stand next to and outside the crush zone. A video was tendered showing the modification in operation.

    (Footnotes omitted)

    [2]     Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36 at [30].

22. The DPM next had regard to the evidence of Mr Peter Kroon, a safety engineer who was called to give evidence by the informant in relation to the tow truck and safety requirements. Mr Kroon expressed the opinion that warning signage was an insufficient safety control, and that engineering controls were needed to detect anyone in the crush zone as the tray was returned.[3]

    [3]     Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36 at [33].

23. The DPM characterised the evidence of Mr Kroon as being to the effect that what was required was a pressure sensitive device across the back of the headboard and/or down the leading edge of the tray and/or down the side of the adjacent step. He considered that such a device would require ‘virtually zero ongoing maintenance’ but recommended that a daily inspection be done. The operation of a device was such that if a person was in the crush zone, there would be contact with the rubbers and the tilt tray would stop moving.[4]

    [4]     Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36 at [34].

24. Mr Kroon’s evidence was that if a pressure sensitive device was installed at the time of manufacture, it would have cost $2,576. He allowed a further couple of thousand dollars for a retrofit. He expressed the opinion that once a risk such as a crush zone was identified, it was for the defendant to engage someone to remedy it, if the defendant could not do it itself.

25. The defence called Mr John Hickey. Mr Hickey was a health and safety engineer. The DPM referred to the following aspects of Mr Hickey’s evidence, among others. Mr Hickey agreed that a pressure sensitive device would diminish the crush risk but was concerned that it needed to be a failsafe device if it was to be relied upon. He considered that it was the responsibility of the designer and manufacturer to identify and install such a device, not the defendant as user.

26. In cross-examination, Mr Hickey accepted that the manufacture may not know all aspects of how an end user may use the product, and that it was therefore necessary for the end user to do its own risk assessment. He accepted that, if need be, such a person should obtain expert advice and expert assistance to remedy identified risks.

27. Mr Hickey accepted that a pressure sensitive device was readily available and could be checked daily.

28. The DPM noted that AHRNS had created a risk assessment for the tilt tray. This identified the hazard of a person becoming trapped between the tray and the truck chassis during operation. It identified the consequence as a fatality. The likelihood of this occurring was said to be highly unlikely, and the overall risk was assessed to be medium. The control measure identified was for a safe work procedure to stop a person from entering the crush zone, warning signs, guarding the area using wheels/tanks etc and an emergency stop to halt the movement of the tray.

29. DAT’s risk assessment in relation to the truck said nothing about the tray. After the incident, its amended risk assessment recognised the crush hazard, but required only training and instructions as a remedy. It did not require an engineering control. It recognised fatality as a potential consequence.

30. The DPM found that DAT knew there was a risk:[5]

    The defendant was in possession of the AHRNS risk assessment which identified that there was a risk, albeit AHRNS thought the likelihood of occurrence was highly unlikely. The risk was of fatal injury. The signage within the crush zone identified that this was an area of risk. The defendant’s informal instructions that persons keep clear of the moving tray necessarily admitted the risk of harm.

    Although the defendant says there was no evidence of other incidents or injuries in relation to tow trucks, this was a new design at least for the defendant. The tow truck had a tray with a fixed headboard and toolboxes fixed to the head board which invited workers into the crush zone, and which then placed workers with their back to the tray when it was being returned. That this was a new design, with signage warnings, indicated to the defendant as the operator and employer that safety controls were needed, and an adequate assessment was required.

    (Footnotes omitted)

    [5]     Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36 at [85]-[86].

1. The DPM held that DAT’s reliance on the signage and administrative instructions was insufficient to discharge its duty and that DAT could not proceed on the basis that training and instructions would be fully complied with. He found that DAT ought reasonably to have known about engineering ways of eliminating or minimising the risk, by engaging suitably qualified and experienced personnel to provide advice and assistance. He found, beyond reasonable doubt, that engineering solutions were available. As identified above, he found that the installation of a pressure sensitive device was a reasonably practical measure that could and should have been implemented. On that basis, he found the charge proved beyond reasonable doubt.

   The appeal to the Full Bench

2. As the Full Bench noted, its obligation on an appeal by way of rehearing was captured by the High Court in Lee v Lee:[6]

   A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law[7].  Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences”[8] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts[9].  Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”[10]. 

   (Footnotes in original)

   [6] (2019) 266 CLR 129 at [55].

   [7]     Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558; [2016] HCA 22.

   [8]     Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558-559.

   [9]     Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434‑435 [144]; [2013] HCA 25; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]; [2017] HCA 49.

   [10]   Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; [1979] HCA 9; see also Fox v Percy (2003) 214 CLR 118 at 127 [25].

3. Calligeros DPJ wrote the first majority judgment of the Full Bench, with Crawley DPJ agreeing and adding some further reasons of his own. While the pivotal question was whether a pressure sensitive device was a reasonably practicable measure to minimise the risk of crushing in the crush zone, other surrounding issues were raised as informing the answer to that question.

4. First, Calligeros DPJ noted that the DAT risk assessment did not identify the type of risk associated with operating the tow truck to secure vehicles through use of the winch or being in the crush zone.[11] The amended risk assessment raised after the incident did so. There was then the risk assessment produced by AHRNS, which did identify the risk of trapping. Calligeros DPJ noted that the DPM had found that DAT was in possession of that risk assessment but considered that the evidence did ‘not necessarily bear out that finding’.[12] However, he found that even if that finding was made in error:[13]

   … his findings that DAT did not identify an obvious and serious risk and failed to conduct a proper risk assessment or have regard to warning signage, are still plainly correct.

   [11]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [143].

   [12]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [147].

   [13]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [149].

5. Next, Calligeros DPJ had regard to the warning signs. He noted Mr Kroon’s opinion evidence that the placement of the warning signs was such that they were not obvious to someone proposing to enter the crush zone. He agreed with that criticism, as had the DPM. However, he also observed that the prosecution did not allege breaches of the duty to provide adequate warning signs and training.

6. Calligeros DPJ then addressed identification of the crushing risk and the expert evidence. He rejected DAT’s submission that the new design of the tow truck did not introduce a new crushing risk. He agreed with the finding of the DPM, supported by the evidence of Mr Kroon, that that the new design invited workers into the crush zone and that it was easier to access the toolbox when the tray was extended.

7. On the use of a pressure sensitive device, Mr Hickey said that in order for such a measure to be effective it would need to be tested before each and every operation, that is, potentially multiple times per day. Mr Kroon had said it would be necessary to test it daily. The DPM did not deal expressly with Mr Hickey’s evidence. Calligeros DPJ held that he was entitled to take judicial notice of the fact that engineering devices are often used in industry to detect when a person is nearby.[14] He also noted that Mr Hickey’s opinion was not put to Mr Kroon. He found, on the basis of the evidence and a general preference for Mr Kroon’s evidence, that a daily check of a pressure sensitive device would be required. He further referred to the multiple daily safety and operational checks that tow trucks are required to undergo and found that one more daily test would not be onerous or impracticable.[15]

   [14]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [160].

   [15]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [161].

8. Mr Hickey also gave evidence that while a pressure sensitive device would reduce the risk of crushing, other risks would remain and be as great, if not greater. Mr Kroon’s evidence, on the other hand, was to the effect that the risk of being crushed by the tray was the primary risk, as the location of the toolboxes provided a motivation to enter the crush zone. Ultimately, Calligeros DPJ expressed a ‘strong preference’ for the evidence of Mr Kroon. He considered that Mr Hickey did not properly explain his key concerns and that his efforts were directed at eliminating rather than minimising risks. It is not necessary for present purposes to recount all of Calligeros DPJ’s reasons for preferring Mr Kroon’s evidence over Mr Hickey’s.

9. Calligeros DPJ then turned to what he described as the central issue on the appeal, being ‘was it reasonably practicable for DAT to adopt an engineering measure that involved the use of pressure sensors to stop the tray if someone or something was present in the crush zone?’[16] His reasoning in this regard involved a number of steps that were the subject of criticism by the applicant.

   [16]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [177].

10. First, Calligeros DPJ agreed with the DPM’s reasons to the effect that the fixed headboard design created a new risk which DAT should have identified.[17] He also considered the DPM correct to have held that DAT knew or ought to have known that there was a crush zone and that it had failed to engage others to find and implement safety controls to manage that risk. With respect to the finding that DAT had taken no action in relation to the risk identified by the warning signs, DAT submitted before the Full Bench that after the incident, AHRNS had made four unsuccessful attempts to devise an engineering measure that convinced SafeWork SA to lift the prohibition notice. At no time had AHRNS suggested the use of a pressure sensitive device. Counsel for DAT had submitted that this indicated that it was not reasonably practicable for DAT to have installed a pressure sensitive device. That is, if AHRNS, the manufacturer, did not come up with this solution in the six months following the incident, how, DAT asked rhetorically, could it, the end user, reasonably be expected to have done so?

    [17]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [178].

11. In this regard it is necessary to note Calligeros DPJ’s characterisation of DAT’s submission. This was as follows:[18]

    Mr Roder submitted that four unsuccessful attempts made by [AHRNS] to devise an engineering measure that convinced SafeWork SA to lift the Prohibition Notice showed that it was not reasonably practicable for DAT, or an expert engaged by DAT, to have contemplated using pressure sensors to minimise the crushing risk.

    [18]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [180].

12. Senior counsel for DAT took issue with this characterisation, saying that it had never been DAT’s submission that it could be inferred that it was not reasonably practicable for an expert to have come up with the solution. He submitted that this indicated what he ultimately submitted was a conflation of issues, in circumstances where the only issue was whether it was reasonably practicable for DAT to have come up with this solution.

13. One solution proposed by AHRNS was a photoelectric sensor. SafeWork SA rejected this proposal following consultation with Mr Kroon, who wrote, ‘As the solution does not fully remove the crush point I would not suggest it minimised the risk and thus addressed their obligations’.[19] Calligeros DPJ considered that this indicated an erroneous approach of conflating minimising a risk with eliminating it, which would leave no work for s 17(1)(b) of the WHS Act.

    [19]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [182].

14. Ultimately, Calligeros DPJ considered this error not to matter, holding:[20]

    Any measure proposed not only had to minimise the crushing risk, it had to be suitable to DAT from an operational viewpoint. For that reason, the failed attempts to lift the Prohibition Notice, and the exchanges between DAT, [AHRNS] and SafeWork SA in that regard, are not probative of whether a pressure sensitive device is a suitable engineering measure to use. Other factors were in play between the three parties. There may have been multiple reasons why AHRNS did not suggest some measures, and DAT and Safework SA did not accept other measures.

    [20]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [185].

15. Calligeros DPJ then brought several matters to account in his consideration of the question. He noted that while the tow truck was inspected and approved in November 2016, it had not been used by DAT until early 2018. He considered that if it had been used in the meantime, that would have been relevant and evidence of that use adduced. He said that the reason for the delay was not explained.[21]

    [21]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [188].

16. Next, he observed that it was not put to Mr Kroon in cross-examination that it was impracticable to test the device as often as he or Mr Hickey recommended. It was also not put to him that the fixed headboard design was not novel, nor that his opinion failed to have regard to industry standards that applied to the truck or to using a pressure sensitive device. Further, Mr Hickey’s evidence did not suggest that there was an applicable industry standard.[22]

    [22]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [189].

17. Calligeros DPJ then observed that neither DAT nor Mr Kroon had previously encountered the crushing risk created by the fixed headboard. He also said:[23]

    It would appear that [AHRNS] had not encountered that risk previously. If it had, evidence to that effect would have been extremely relevant and valuable to DAT.

    [23]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [190].

18. DAT took issue with this, on the basis that there was no evidence as to AHRNS not having encountered the risk. DAT also challenged the relevance of this passage to the ultimate finding of guilt.

19. Calligeros DPJ then said that it was not necessary to be satisfied that pressure sensors were an industry standard for dealing with the crushing risk. He went on:[24]

    The novelty and serious consequences of the risk suggest that caution should have been exercised, and the two active safety measures suggested by Ahrns should have been adopted. Even if DAT did not have the Ahrns risk assessment, it should have identified the crushing risk and spoken to Ahrns about it before using the tow truck. It is not surprising that there may not have been an industry standard to deal with the crushing risk at the time in question.

    [24]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [191].

20. Calligeros DPJ held that DAT should not have used the tow truck without identifying, considering and minimising the risk. In this regard, he considered that the case fell within the contemplation of the first inference described in the following passage in Chugg v Pacific Dunlop Ltd (‘Chugg’):[25]

    … In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide “so far as is reasonably practicable” a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge.

    (Emphasis added)

    [25] (1990) 170 CLR 249 at 260-261.

21. Calligeros DPJ held that the risk here was ‘so obvious or perceptible’ and DAT’s lack of action in response to the risk so obvious, that it gave rise to an inference that DAT had failed to comply with a health and safety duty under s 32 of the WHS Act. He considered that DAT’s evidence about the engineering measure relied on by the prosecution was not persuasive and did not displace the expert evidence (of Mr Kroon).[26] He considered that the evidence of Mr Kroon ‘established that a pressure sensitive device was a reasonably practicable measure to minimise the crushing risk beyond a reasonable doubt’.[27]

    [26]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [195].

    [27]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [196].

22. Calligeros DPJ further held that the fact that it ultimately took AHRNS nine months to devise an acceptable solution did not create a reasonable doubt that a pressure sensitive device, as suggested by Mr Kroon, was a reasonably practicable engineering solution.[28]

    [28]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [204].

23. Crawley DPJ substantially agreed with the reasons given by Calligeros DPJ and gave some short further reasons. He agreed with Calligeros DPJ that the AHRNS risk assessment did not absolve DAT of positive obligations. Significantly to the applicant’s case, Crawley DPJ then said:[29]

    Had DAT sought the view of an engineer, as it ought reasonably to have done, the evidence establishes an engineering solution would have been suggested and, as the Deputy President found, ought to have been implemented. The Court heard from two engineers, both of whom discussed he idea of a pressure sensor.

    [29]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [236].

24. Crawley DPJ went on to disagree with the view expressed by Gilchrist DPJ in dissent (discussed below) that the evidence left a reasonable doubt about whether the pressure sensitive solution was capable of being implemented. He referred to the evidence of the costings and continued:[30]

    Moreover, Mr Kroon’s evidence of its ability to be implemented was unchallenged in cross‑examination. Mr Hickey’s evidence as to the process of implementation of engineering designs generally, was not specifically referenced to this solution; nor was it put to Mr Kroon in any event.

    [30]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [240].

25. Gilchrist DPJ dissented, concluding that he was left with a doubt as to whether the installation of a pressure sensitive device on the tow truck was a workable and cost-effective solution. The key points in his reasoning can be described in fairly short order.

26. First, he did not think that the evidence permitted a finding beyond reasonable doubt that the design of the truck was new. All that it established was that it was new for DAT. The design had been around since 2 November 2016 and there was photographic evidence of another truck of a similar design with a different operator’s branding being used.[31]

    [31]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [102].

27. Next, Gilchrist DPJ considered that it was not open for the DPM to find that DAT was in possession of AHRNS’s risk assessment report before 14 March 2018.[32] Then, on the DPM’s finding that DAT had issued informal instructions that persons keep clear of the moving tray, Gilchrist DPJ considered that the DPM did not identify the evidence that enabled him to make that finding. If it was based on what Mr Ravlich’s work colleague had told Mr Ravlich about standing clear, that did not justify a conclusion that DAT had apprised itself of the risk.[33]

    [32]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [106].

    [33]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [107].

28. Gilchrist DPJ considered that the DPM’s finding that DAT had an actual appreciation of the risk was critical to his conclusion that it ought reasonably to have known about the potential for eliminating or minimising the risk by engaging a suitably qualified person to provide advice and assistance. The problems with the finding of actual appreciation of risk meant that his decision was affected by error.[34]

    [34]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [108].

29. Gilchrist DPJ then embarked on his own assessment. He articulated the test as follows, in a way that DAT embraced:[35]

    To establish that the charge had been proven SafeWork SA needed to establish beyond reasonable doubt that DAT should have appreciated that the crush zone posed a risk of injury; that the duty imposed by the Act required it to go further than simply rely upon [AHRNS’s] design and that it should have independently sought expert advice as to how to ameliorate that risk; and that that expert advice would have included installing a pressure sensitive device on the inside edges of the crush zone and that it was reasonably practicable for it to have implemented this measure.

    [35]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [110].

30. Gilchrist DPJ noted DAT’s concession on appeal that it should have appreciated that the crush zone posed a risk of injury. He found it was right to have so conceded, given its experience in the industry and the warning signs that AHRNS had placed in the zone.[36]

    [36]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [111].

31. Gilchrist DPJ also found that DAT ought to have appreciated, on the basis of its experience, that the crush zone carried with it a risk of catastrophic injury. That being the case, it ought to have assessed the risk independently and to have appreciated that amelioration of the risk required more than just the signs that AHRNS placed in and around the crush zone. He found that DAT should have determined that it needed to explore an engineering solution.[37]

    [37]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [113].

32. However, Gilchrist DPJ then found that there was a tension between Mr Kroon’s evidence suggesting that the installation of a pressure sensitive device was unproblematic, and the evidence that AHRNS ‘did not suggest it or something similar’.[38] In this regard, the respondent pointed out that AHRNS had suggested a photoelectric device.

    [38]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [114].

33. Gilchrist DPJ was satisfied beyond reasonable doubt that pressure sensitive devices were readily available at the time, and that they were relatively inexpensive. However, he considered it ‘striking’ that none of AHRNS’s recommendations after the event included the installation of a pressure sensitive device. This was on the basis that AHRNS was considering the question after a fatal accident and under cover of a Prohibition Notice.[39]

    [39]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [117].

1. However, he also considered that there was a ‘provisional aspect’ to Mr Kroon’s opinion about a pressure sensitive device being a reasonably practical engineering solution. This was on the basis that Mr Kroon gave evidence of the need to undertake drawing updates and field investigation of the equipment, investigating how it was to be integrated, and revising and updating the design accordingly. He considered this provisional aspect to be broadly consistent with Mr Hickey’s opinion.[40] In any event, the tow truck was a ‘complicated piece of plant’. He found, based on Mr Kroon’s evidence, that the truck was associated with a variety of crush risks. Modification of such a complex piece of plant would require preliminary designs, trial implementations, reassessment, and if necessary further design and trial implementation before making a decision as to whether the proposed measure was workable and reasonably practicable to implement.[41]

   [40]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [118].

   [41]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [119].

2. Further, he observed that there was no evidence from a designer or manufacturer of tow trucks that the installation of a pressure sensor on the truck or something similar was workable and cost-effective and would have ameliorated the risk. The only evidence from a manufacturer of tow trucks was from AHRNS, which put up various proposals, none of which involved the installation of a pressure sensitive device. In this regard it should be noted, as the respondent submitted, that no representative of AHRNS gave evidence. Rather, the evidence was that as a matter of fact, AHRNS had put up various proposals after the Prohibition Notice was given.

3. In any event, on this accumulated basis, Gilchrist DPJ was left with doubt as to whether the installation of a pressure sensitive device on the truck was a workable and cost-effective solution.

   The appeal to this Court

4. As already noted, the appeal to this Court from the Full Bench lies on a question of law only. Before coming to the questions raised by DAT, it is helpful to identify some matters of principle.

5. First, the framing of the charge is critical. As DAT submitted, the burden lies on the prosecution to prove beyond reasonable doubt that it was reasonably practicable for the defendant to undertake the particular measure identified in the charge.[42] Here, relevantly, the Information and Summons asserted that DAT had failed to take one or more of several identified several measures that it asserted were reasonably practicable measures to eliminate or minimise the risks to the worker. For the purposes of this appeal, the only remaining particularised measure was expressed as follows:

   1.6The defendant failed to ensure so far as was reasonably practicable the health and safety of the worker in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to the health and safety of the worker:

   …

   b.    adopting an engineering measure incorporating pressure sensors on the inside edges of the crush zone that would operate to stop the movement of the tray top if there was a person or other hazard within the crush zone.

   [42]   See, e.g., Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [12].

6. It follows that it was necessary for the prosecution to prove, beyond reasonable doubt, that it was reasonably practicable for DAT to have adopted an engineering measure incorporating pressure sensors, so described.[43] Moreover, it is not sufficient to for the prosecution to identify this as a step that could possibly have been taken. As the High Court explained in Baiada Poultry Pty Ltd v The Queen (‘Baiada’):[44]

   The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment.  Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1).  The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.

   [43]   Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [14].

   [44] (2012) 246 CLR 92 at [15].

7. The question relates not to what is reasonably practicable as an abstract proposition but what is reasonably practicable for the employer within the relevant industry. That will often be informed by evidence of adherence to widely accepted industry standards. What was done after the event may nonetheless shed light on what was, or should have been, reasonably practicable. The question must be determined having regard to what was reasonably practicable in prospect, before the alleged breach.

8. The question of whether it was sufficient for an employer to have relied on a third party, such as a subcontractor, has arisen repeatedly.  In Baiada,[45] Heydon J, agreeing with the plurality, said:[46]

   In some circumstances, the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment.  Assume that two householders want an electrician to lay an electrical wire underground going into their house.  Assume that they also want a plumber to repair pipes near that wire.  Assume that the householders are wholly inexperienced in electrical and plumbing work.  Assume that the electrician and the plumber are expert and experienced in their fields.  Assume that they know where the pipes are in relation to the wire.  Any attempt by the householders to deliver a speech about safety would be likely to prompt aggressive responses from the contractors.  The criteria of reason suggest that it would be more practicable for the householders to rely on the contractors to ensure safety.  To hold otherwise would demonstrate an extreme harshness in the legislation.  Very often those who engage independent contractors know much less about safety than the independent contractors do.

   [45]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92.

   [46]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [65].

9. However, that ability to rely on contractors is hardly absolute. The employer may well have specialist skills or a role in its industry requiring, nonetheless, an understanding of safety risks and the need to undertake measures in respect of them, if not exactly what those measures might comprise.[47] As the plurality said in Baiada:[48]

   The true import of Baiada’s submissions about reliance on its subcontractors was identified in the course of the argument about how the jury’s question should be answered.  Trial counsel for the prosecution accepted, correctly, that Baiada’s reliance on expert subcontractors could be relevant only to the question of what was reasonably practicable for an employer in the circumstances. 

   [47]   Cf. Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [66] (Heydon J).

   [48]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [16].

10. Thus, for example, in Reilly v Devcon Australia Pty Ltd,[49] the Western Australian Court of Appeal considered the concept of ‘practicable’ in ss 3(1) and 19(1) of the Occupational Safety and Health Act 1984 (WA). The definition directed attention to, among other things:

    (b)the state of knowledge about -

    (i)    the injury or harm to health referred to in paragraph (a);

    (ii)     the risk of that injury or harm to health occurring; and

    (iii)    means of removing or mitigating the risk or mitigating the potential injury or harm to health;

    [49] (2008) 36 WAR 492.

11. This is comparable to that part of the definition of ‘reasonably practicable’ in s 18 of the WHS Act which, similarly, directs attention to:

    (c)     what the person concerned knows, or ought reasonably to know, about—

    (i)    the hazard or the risk; and

    (ii)ways of eliminating or minimising the risk;

12. The Court in Reilly v Devcon Australia Pty Ltd explained, in the context of the applicable statutory definition, that the term ‘reasonably practicable’ that the ‘state of knowledge’ of the employer is an objective question:[50]

    The fact that a person who is in control of a particular “matter” affecting safety does not know something that should have been known by a person in that position cannot answer the question whether it was reasonably practicable for that person to have done something about the matter.  However, the words “state of knowledge about … the risk … and means of removing or mitigating the risk …” encompass not only what is known concerning those matters, but also who might ordinarily be expected to have that knowledge.  Consequently, when considering, for the purposes of s 19(1), whether it was reasonably practicable for a deemed employer to have avoided a particular hazard, it would be a relevant consideration that the expert knowledge required to avoid the hazard fell within the province of the specialist contractor which had been engaged to do the work that gave rise to the hazard and outside that of the deemed employer.

    [50]   Reilly v Devcon (2008) 36 WAR 492 at [60].

13. A similar relevant consideration arises in the application of s 18 of the WHS Act.

14. In the context of the present appeal, these observations of principle have particular significance to the first and third questions of law raised. Both those questions focus, in different ways, on the requirement that the prosecution establish beyond reasonable doubt that it was reasonably practicable for DAT to have adopted an engineering measure that incorporated a pressure sensitive device in the crush zone.

    Question 1: Was the ultimate conclusion available on the facts as found and undisputed?

15. In the context of the case as it was charged and run, this question asks whether it was open, on the facts as found and otherwise undisputed for the majority to have found proved beyond reasonable doubt, that the installation of a pressure sensitive device was a reasonably practicable measure for DAT to have implemented. As discussed above, it does not ask in the abstract whether a pressure sensitive device was reasonably practicable. The focus is on what was reasonably practicable for DAT.

16. The other way of approaching this question of law is to focus on the proposition that DAT must establish on this appeal. This is that on the facts as found and undisputed, it was not open for the Tribunal to have found that the installation of a pressure sensitive device was a reasonably practicable measure for DAT to have implemented.

17. In developing this argument, DAT submitted that neither of the majority members of the Full Bench made a finding that the installation of a pressure sensitive device was a reasonably practicable measure for DAT to have implemented, as opposed to whether it was, in the abstract, a reasonably practicable measure. Whether the majority erred in that regard is properly the subject of the third question of law, which is directed to whether the majority asked the correct question.

18. It is helpful to note that the question of law raised by the first ground is raised in the context of criminal proceedings. It is, in its character, the same question that is raised by the common form ground of appeal that a verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[51] It admits of only one answer. In effect, DAT submitted that it was not open for the Tribunal to have found that the installation of a pressure sensitive device was a reasonably practical measure for it, the employer, to have implemented.

    [51]   Criminal Procedure Act 1921 (SA), s 158(1)(a).

19. There were several strands to DAT’s argument. The ‘fundamental difficulty’ that DAT identified is that the evidence did not permit an inference to be drawn beyond reasonable doubt that had it made the inquiries that it accepted it should have made, the charged measure would have been recommended to it and would have been reasonably practicable to implement.

20. This submission turned first on the evidence of what transpired after the incident. Mr Hickey, whose evidence was, on DAT’s submission, unchallenged, said that engineering modifications to specialised equipment of this kind may raise difficult issues. His evidence was to the effect that if appropriate modifications were to be considered, the appropriate person to consult was the specialist designer and manufacturer.

21. That is a fair characterisation of one aspect of Mr Hickey’s evidence, but it is not complete. Mr Hickey’s evidence was primarily directed at the inappropriateness of DAT attempting to tinker with the final product after its procurement, given the complexity of the design and manufacture. His opinion was that it was appropriate for purchasers of such complex plant to defer to the specialist knowledge of the supplier. DAT’s submission on appeal seemed to go further. We understood its submission to be to the effect that Mr Hickey’s evidence was that it was sufficient for DAT to turn to AHRNS in the event that it had a concern and required a modification. That might be able to be inferred from Mr Hickey’s evidence, but for reasons we will come to, that does not ultimately matter.

22. The importance of this step in DAT’s argument lies in its connection with the next step. DAT pointed to the history of what occurred after the accident, when the truck was subjected to the Prohibition Notice. Over a period of months, AHRNS made five attempts to modify the truck. SafeWork SA took advice from Mr Kroon in respect of these modifications. The solutions that AHRNS proposed did not include the charged solution of a pressure sensitive device.[52]

    [52]   SafeWork SA did accept the final solution that Ahrns proposed, but DAT was not convicted in relation to that measure. It can be put to one side.

23. DAT submitted that it followed that the evidence did not establish that if it had consulted with AHRNS, AHRNS would have recommended the pressure sensitive device. History indicated it would not have. There was no evidence that consultation with a different industry expert manufacturer or designer would have produced a recommendation of a pressure sensitive device. In that regard, the evidence that was led of the existence of another truck in operation showed that truck to have a different engineering solution to the crush zone risk.

24. It is important to view the evidence about what AHRNS did after the accident in context. AHRNS was tasked, under the auspices of the Prohibition Notice, with eliminating or minimising the risk to health and safety of workers following a fatal accident. The evidence of what it then proposed, over the ensuing months, is evidence of a factual history in that context. It is not expert evidence of AHRNS as to the possible engineering solutions.

25. Notwithstanding that AHRNS designed and manufactured the truck, we do not accept that the history of what it did next, in the aftermath of the accident, necessarily warrants a conclusion that DAT would not, had it made reasonable enquiries on its identification of the crush zone risk at an appropriate time, been advised of the appropriateness of a pressure sensitive device.

26. This is not to deprecate the way that Gilchrist DPJ had regard to the fact that AHRNS did not suggest a pressure sensitive device. The fact that AHRNS did not recommend such a device (it did recommend an optical sensor, which SafeWork SA did not accept) remains relevant. Gilchrist DPJ manifestly gave that evidence more weight in his consideration than he did to the expert evidence of Mr Kroon as to the reasonable practicality of a pressure sensitive device. Mr Kroon gave evidence that he was an expert safety engineer who worked in the business of identifying risks of injury in plant and machinery design and helping clients effectively manage those risks. He explained in evidence:

    I was of the opinion that the key way of managing this risk would be to use an engineering control, or, I’m sorry, my first and foremost thought was do we have to actually have a fixed headboard and a moving tray or could it be all in one, like a traditional design. That would have eliminated the risk. In the absence of that or because there wasn’t a significant benefit in having a moving tray with a fixed headboard and there was deemed to be, you know, significant advantages to that, then my next thought was using an engineering control which would basically detect the presence of a person in that crush zone as the tray is closing.

27. It was open to Gilchrist DPJ to have a doubt, based on the significance he accorded to the evidence about AHRNS’s actions after the accident. On the other hand, AHRNS had originally manufactured the truck and identified the crushing risk. It had apparently not previously identified that an engineering solution was required for the crushing risk that it did identify.

28. It was also open to accept Mr Kroon’s evidence and, further, conclude that a pressure sensitive device was a reasonably practicable measure for DAT to adopt, notwithstanding that AHRNS had not identified it either at manufacture or in its efforts after the accident. These were factual matters for assessment by the trier of fact. They did not admit of only one answer.

29. DAT also relied on the issue of cost, a matter that featured in Gilchrist DPJ’s expression of doubt as to the reasonable practicability of the measure. As DAT observed, cost is a mandatory consideration under s 18. DAT submitted that Mr Kroon’s estimate of cost was not proved; that his figure of $2,000 to retrofit a device was nothing more than an unproved assumption. DAT embraced Gilchrist DPJ’s view that there was a provisional aspect to Mr Kroon’s opinion that a pressure sensitive device was a reasonably practical measure, having regard to the design, trial and reappraisal process that would have to be undertaken with respect to retrofitting such a device.

30. We do not accept that Mr Kroon’s opinion was without value for want of unproved assumptions. His use of the word ‘assume’ in respect of the cost of retrofitting was, clearly enough, an estimate based on his expert knowledge. As the respondent pointed out, he was not cross-examined on this evidence. The evidence of cost was something to be assessed by the Tribunal as fact finder. It cannot be said that there was no evidence of cost of the charged measure by which the Tribunal could assess whether the cost was grossly disproportionate to the risk, as required by s 18.

31. It was open, on the facts as 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. We would answer the first question of law, ‘yes’. We would dismiss Ground 1 of the appeal.

    Question 3: Did the majority judges err by failing to address the correct question posed by s 19 of the WHS Act?

32. It is convenient to address Question 3 next. This question focuses on the incident of the charge, discussed above, that the charged engineering solution was a reasonable and practicable measure for DAT to have adopted, not just that it was, in the abstract, a reasonable and practicable measure. DAT’s complaint is that the reasons of the majority indicate that they asked the wrong question and did not consider whether the pressure sensor device was a reasonable and practicable measure for it to have adopted.

33. DAT relied on a number of aspects of the majority reasons in support of its contentions that they proceeded on the wrong question. First, it pointed to Calligeros DPJ’s characterisation of counsel’s submissions with respect to the failed attempts by AHRNS to satisfy SafeWork SA after the accident:[53]

    Mr Roder submitted that four unsuccessful attempts made by [AHRNS] to devise an engineering measure that convinced SafeWork SA to lift the Prohibition Notice showed that it was not reasonably practicable for DAT, or an expert engaged by DAT, to have contemplated using pressure sensors to minimise the crushing risk.

    (Emphasis added)

    [53]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [180].

1. Senior counsel explained that the emphasised passage was not part of his submission. Indeed, his submission was focussed on what was reasonably practicable for DAT to have done. The inclusion, in this passage, of what was reasonably practicable for an expert engaged by DAT to have done indicated a focus on the abstraction, not the obligation of DAT under the WHS Act.

2. Next, DAT pointed to the following (highlighted) passage in Calligeros DPJ’s reasons:[54]

   Any measure proposed not only had to minimise the crushing risk, it had to be suitable to DAT from an operational viewpoint. For that reason, the failed attempts to lift the Prohibition Notice, and the exchanges between DAT, [AHRNS] and SafeWork SA in that regard, are not probative of whether a pressure sensitive device is a suitable engineering measure to use. Other factors were in play between the three parties. There may have been multiple reasons why [AHRNS] did not suggest some measures, and DAT and SafeWork SA did not accept other measures.

   [54]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [185].

3. Consistently with its earlier submission, DAT emphasised that the question was not whether a pressure sensitive device is a suitable engineering measure to use, but whether it was reasonably practicable for DAT to implement it to minimise the crushing risk.

4. The highlighted passage does put the question in an abstract form. However, the premise of that statement appears at the beginning of the paragraph, namely that any proposed measure had to be suitable to DAT from an operational viewpoint. That speaks against the inference that all that was being considered was a solution in the abstract. Having said that, we have difficulty accepting that the possibility that certain measures might not have been suitable to DAT, or to AHRNS or Safework SA, rendered the post-accident history with AHRNS irrelevant. For the reasons discussed above, we think that that history is capable of raising a doubt, as it did for Gilchrist DPJ. The weight to be ascribed to that history is another matter, and not something that can be resolved by this Court.

5. DAT then pointed to Calligeros DPJ’s treatment of some pieces of evidence, the accumulation of which, it submitted, fed into a further error. First, Calligeros DPJ said, in respect of the delay between inspection and approval in 2016 and the first use of the truck in 2018:[55]

   If the tow truck had been owned or used before DAT commenced using it early in 2018, that evidence would have been very relevant and one would expect it to have been adduced.

   [55]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [188].

6. Calligeros DPJ appears to have given weight to the lack of any explanation by DAT for this delay. It is difficult to understand what he meant by this, given that this was a criminal trial.[56] Then, Calligeros DPJ observed that it was not put to Mr Kroon in cross-examination that it was impracticable for DAT to test the pressure sensitive device as often as his evidence (or even Mr Hickey’s) suggested was necessary. Mr Kroon had not given evidence on the practicalities of testing and DAT again queried the use to which this observation had been put forensically by the Tribunal. Finally, in this category of observations, Calligeros DPJ said that it appeared that AHRNS had not encountered this risk previously. He considered that if it had, evidence to that effect would have been extremely relevant and valuable to DAT.[57]

   [56]   Cf Weissensteiner v The Queen (1993) 178 CLR 217 at 224-228 (Mason CJ, Deane and Dawson JJ).

   [57]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [190].

7. DAT complained that Calligeros DPJ did not explain the forensic use to which he put these pieces of evidence. It apprehended, but it could not be sure, that they fed into Calligeros DPJ’s reference to Chugg,[58] quoted above. Prior to quoting that passage, Calligeros DPJ had noted the High Court’s statement in that case that ‘the issue of practicability requires some consideration of the issue of foreseeability’.[59] DAT apprehended that the evidential matters discussed immediately above somehow informed the question of practicability, possibly via the question of foreseeability. However it complained that, if so, it was not clear how they did so.

   [58]   Chugg v Pacific DunlopLtd (1990) 170 CLR 249.

   [59]   Chugg v Pacific DunlopLtd (1990) 170 CLR 249 at 265.

8. In any event, this then led to the culmination of DAT’s substantive complaint, against the background of the indications set out above, that Calligeros DPJ had approached the question of reasonable practicability through an abstract lens, rather than by what was reasonably practicable for DAT to have adopted.

9. Calligeros DPJ said that this case gave rise to the first inference identified in Chugg,[60] being that the ‘mere identification’ of the cause of a perceptible risk may ‘as a matter of common sense’ constitute identification of the means of removing that risk. Calligeros DPJ went on to say:[61]

   The risk here was so obvious or perceptible, and DAT’s lack of any action in response to the risk so obvious, it gives rise to an inference that DAT failed to comply with a health and safety duty under s 32 of the WHS Act.

   [60]   Chugg v Pacific DunlopLtd (1990) 170 CLR 249 at 260-261.

   [61]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [195].

10. Calligeros DPJ considered that the evidence adduced by DAT ‘about the engineering measure relied on by the prosecution to minimise the crushing risk, that evidence was not to my mind persuasive and did not displace the expert evidence relied upon by the prosecution’.[62] He went on to say:[63]

    In my view the evidence of Mr Kroon established that a pressure sensitive device was a reasonably practicable measure to minimise the crushing risk beyond a reasonable doubt.

    [62]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [195].

    [63]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [196].

11. There is a relatively strong inference arising from this part of the reasons that Calligeros DPJ approached the question of reasonable practicality by reference to the abstract question of the appropriateness of the engineering solution to this risk, without incorporating the question of the appropriateness of it as a solution for DAT to have adopted. Calligeros DPJ appears to have drawn from the obviousness of the risk a conclusion that DAT had, by not doing anything, breached s 32. However, that was not the charge. The inference described in Chugg speaks to risks that are so obvious as to suggest the solution. That seems to indicate that his Honour thought that the reasonably practical solution of a pressure sensitive device was suggested by the very risk. That is problematic in a case such as this.

12. However, Calligeros DPJ then did go on and locate the reasonable practicability of the pressure sensitive device in Mr Kroon’s evidence. That goes some way to correcting what we think was an error in relying on Chugg in this way. That does not, however, address the entirety of DAT’s complaint. Calligeros DPJ appears to have resolved the question, in the last passage quoted above, in the abstract terms, not by reference to whether it was a reasonably practicable measure for DAT to have adopted.

13. However, the reasons must be read as a whole. As the respondent submitted, Calligeros DPJ had earlier stated the test in unequivocally correct terms:[64]

    That leads to the central issue in the appeal. Was it reasonably practicable for DAT to adopt an engineering measure that involved the use of pressure sensors to stop the tray moving if someone or something was present in the crush zone?

    [64]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [177].

14. Elsewhere, Calligeros DPJ used language consistent with this formulation, in that he identified the failures of DAT in identifying and engaging others to implement adequate safety controls.[65] As noted above, he recognised that any measure proposed ‘had to be suitable to DAT from an operational viewpoint’.[66] Earlier, he had noted that there had been no suggestion that it was impracticable for DAT to test the pressure sensitive device daily as suggested by Mr Kroon or even more often as suggested by Mr Hickey.[67]

    [65]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [178]-[179].

    [66]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [185].

    [67]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [160].

15. The respondent also pointed to the reasons of Crawley DPJ, who found, as identified above, that had DAT sought the view of an engineer, and engineering solution would have been suggested and ought to have been implemented.[68] This finding, too, was focused on the position of DAT.

    [68]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [236].

16. Ranging over competing phrasings in the written reasons does not necessarily point to an answer to the complaint. We are satisfied that the majority articulated, in the course of their reasons, the correct test. However, the operative reasons in their application of the test require further consideration.

17. The reasoning of both majority judges identifies the operative failure of DAT to be the failure to do anything in response to the obvious risk. That is indicated by Calligeros DPJ’s invocation of the ‘first inference’ identified in Chugg[69] and the finding by Crawley DPJ that DAT ought reasonably to have sought the view of an engineer. The finding, in each case, that DAT should have, but failed to, consult with an engineer is unimpeachable. Indeed, it was not in dispute. However, that was only the first step.

    [69]   Chugg v Pacific DunlopLtd (1990) 170 CLR 249 at 260-261.

18. The ‘first inference’ in Chugg that Calligeros DPJ identified as arising in this case includes a ‘common sense identification’ of the means of removing the risk. However, Calligeros DPJ located DAT’s consequential breach of s 32 in its failure to do anything, rather than to implement pressure sensors as a ‘common sense’ means of removing the risk:[70]

    The risk here was so obvious or perceptible, and DAT’s lack of any action in response to the risk so obvious, it gives rise to an inference that DAT failed to comply with a health and safety duty under s 32 of the WHS Act.

    [70]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [195].

19. Similarly, Crawley DPJ found that had DAT sought the view of an engineer, the evidence established that ‘an engineering solution would have been suggested’ and ought to have been implemented.[71] He noted that the two engineers ‘discussed the idea of a pressure sensor’. That was not a finding that a pressure sensor would have been suggested.

    [71]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [236].

20. Each of Calligeros DPJ and Crawley DPJ then made findings about the reasonable availability of a pressure sensor. As identified above, Calligeros DPJ found that the evidence of Mr Kroon ‘established that a pressure sensitive device was a reasonably practicable measure to minimise the crushing risk beyond a reasonable doubt’.[72] Similarly, Crawley DPJ found:[73]

    The evidence of Mr Kroon which the Deputy President accepted (as he was entitled to do and as would I if required to do so) was that pressure sensors were readily available and would have eliminated the particular risk. The evidence of Mr Hickey in his report was that such a sensor “may have reduced the risk”. In his oral evidence he agreed that such a device would have diminished the risk. It is hard to see how it would not have eliminated that particular risk if it was operating correctly. Mr Hickey did agree that pressure sensitive rubber strips were readily available on the open market – which again emphasises that such solutions were neither novel nor unusual.

    (Footnotes omitted)

    [72]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [196].

    [73]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [238].

21. Crawley DPJ went on to find that the evidence established that the cost of implementing a solution was less than $5,000. He compared that with the ability of the measure to have saved a man’s life.[74]

    [74]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [239].

22. The majority judges do not speak of the remedy of a pressure sensitive device other than in terms of its ability to remedy the risk. However, they articulated the test correctly. Having regard to their acceptance of Mr Kroon’s evidence of the reasonable practicability and cost of a pressure sensor, we are satisfied that they considered whether the charged engineering solution was a reasonable and practicable measure for DAT to have adopted, not just that it was, in the abstract, a reasonable and practicable measure.

23. We reach that conclusion notwithstanding our disagreement with Calligeros DPJ’s reliance on Chugg in the manner that he did. We do not think it could be said that the obviousness of the risk also constituted identification of the means of removing the risk, at least the charged means. However, we are satisfied that the majority’s subsequent treatment of the evidence of a pressure sensitive device was sufficient to indicate that they approached the question by considering whether a pressure sensor was a reasonable and practicable measure for DAT to have implemented. We reach that conclusion subject to certain matters we discuss in the context of Question 2.

24. 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?

25. 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].

26. 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].

27. 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.

28. 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.

29. 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].

30. Ultimately, Calligeros DPJ addressed the submission on the lack of an industry standard as follows:[84]

    The Court does not need to be satisfied that pressure sensors are or were an industry standard for dealing with the crushing risk in this case. The novelty and serious consequences of the risk suggest that caution should have been exercised, and the two active safety measures suggested by [AHRNS] should have been adopted. Even if DAT did not have the [AHRNS] risk assessment, it should have identified the crushing risk and spoken to [AHRNS] about it before using the tow truck. It is not surprising that there may not have been an industry standard to deal with the crushing risk at the time in question.

    [84]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [191].

31. The finding that it was not surprising that there was no industry standard is understandable. This conclusion does not, however, address DAT’s contention that in the absence of an industry standard, there was no evidence that the particularised measure would have been recommended.

32. That contention is the subject of particulars 2.1 and 2.5. The respondent pointed to several passages in the reasons of Calligeros DPJ which, it submitted, addressed the contention.

33. First, Calligeros DPJ characterised the submission of DAT:[85]

    Mr Roder submitted that four unsuccessful attempts made by [AHRNS] to devise an engineering measure that convinced Safework SA to lift the Prohibition Notice showed that it was not reasonably practicable for DAT, or an expert engaged by DAT, to have contemplated using pressure sensors to minimise the crushing risk.

    [85]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [180].

34. As discussed above, this had not been counsel’s submission. That is, the submission had not extended to what was reasonable for an expert engaged by DAT to have contemplated. Rather, the question was what was reasonable for DAT.

35. In any event, Calligeros DPJ then addressed SafeWork SA’s decision not to accept photoelectric sensors on what appears to have been a misinformed legal basis, in that it appeared that Mr Kroon, who was advising SafeWork SA, conflated minimising a risk with eliminating it.[86] Calligeros DPJ continued:[87]

    Although SafeWork SA’s approach to the removal of the Prohibition Notice was misinformed, the error is not relevant to whether DAT has complied with the relevant provisions of the WHS Act. SafeWork SA’s approach and the responses made to DAT do not determine or bind this Court in relation to whether a pressure sensitive device was a reasonably practicable engineering measure to use in this case. In May 2018 Mr Kroon was not asked to identify a suitable engineering measure to minimise the crushing risk but to comment on a proposal from [AHRNS] to have the Prohibition Notice removed. It was not for SafeWork SA or Mr Kroon at that time or in that context to suggest or devise a measure on behalf of DAT. Any measure proposed not only had to minimise the crushing risk, it had to be suitable to DAT from an operational viewpoint. For that reason, the failed attempts to lift the Prohibition Notice, and the exchanges between DAT, [AHRNS] and SafeWork SA in that regard, are not probative of whether a pressure sensitive device is a suitable engineering measure to use. Other factors were in play between the three parties. There may have been multiple reasons why [AHRNS] did not suggest some measures, and DAT and Safework SA did not accept other measure.

    [86]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [181]-[184].

    [87]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [185].

1. Later, Calligeros DPJ confirmed his view:[88]

   The interactions between DAT, [AHRNS] and SafeWork SA in relation to the Prohibition Notice do not determine whether the prosecution has made its case and there is limited evidence about those interactions.

   [88]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [204].

2. We do not disagree with the factual observation that it was not for SafeWork SA or Mr Kroon to suggest measures. However, there was nonetheless considerable evidence of the history of the attempts to find a suitable measure, after the accident. That history is capable of giving rise to various inferences.

3. As to that, we have accepted the respondent’s criticism of Gilchrist DPJ’s characterisation of this evidence as ‘evidence from a manufacturer of tow trucks as to possible engineering solutions’.[89] It was, rather, factual evidence of what the manufacturer had come up with and had failed to come up with. We also accept the observation by Calligeros DPJ that there may have been multiple reasons why AHRNS did not suggest ‘some measures’, including a pressure sensitive device.

   [89]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [120].

4. However, as discussed above in the context of Question 1, we do not think that the limitations attaching to the evidence of what occurred after the accident meant that this evidence was not probative of whether a pressure sensitive device was a suitable engineering measure for DAT to have adopted. Given, as discussed above, the question was whether this was a suitable engineering measure for DAT to use, evidence of the resources likely to have been available to DAT was probative of that question. We have also accepted that this evidence might not be determinative. Whether it raised a sufficient doubt was an assessment of fact. Gilchrist DPJ experienced a doubt on account of that evidence. As we have found, he was entitled to do so.

5. Viewing the reasons as a whole, it appears that Calligeros DPJ treated DAT’s submission on this topic as being that the post-accident history showed that it was not reasonably practicable for an expert engaged by DAT to have contemplated a pressure sensitive device.[90] If that had been the question, or even just the submission, we would accept that the post-accident history would not have been relevant.

   [90]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [180].

6. However, that was not DAT’s submission. The only question, and DAT’s contention, concerned what was reasonably practicable for DAT to have implemented. By dismissing the post-accident history as not probative of that issue at all, in our view Calligeros DPJ erred in failing to address DAT’s contention, and the evidence supporting it. This was that the post-accident history showed that it was not reasonably practicable for DAT (as opposed to an expert engaged by DAT) to have installed a pressure-sensitive device.

7. As discussed above, Crawley DPJ concluded that had DAT sought the views of an engineer, ‘as it ought reasonably to have done’, the evidence established that an engineering solution would have been suggested. He did not make a finding about what engineering solution would have been suggested. He observed that the expert engineers discussed ‘the idea of a pressure sensor’. Again, in our view, it was necessary to address DAT’s contention that the evidence of the history showed that a pressure sensor solution would not have been suggested, or at least raised a reasonable doubt as to the reasonable practicality for DAT to have implemented a pressure sensor in the first place.

8. There is a considerable overlap here with Question 3. We have concluded that, notwithstanding some contra-indications, the majority did ask the correct question. It may be that the failure to address DAT’s contention about the post-accident history suggests a different answer to Question 3, namely that the majority ultimately answered the question of reasonable practicability in the abstract. While accepting the existence of an overlap, we are still inclined to the view that the majority did ask the correct question, as set out in our conclusion on Question 3. However, it 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 on an issue that was of importance to the determination of the appeal against conviction.

9. It is not necessary to address the balance of DAT’s complaints. We would answer Question 2, ‘no’.

   Conclusion

10. We would allow the appeal on Ground 2 and order that the matter be remitted to the Full Bench for hearing and determination in accordance with these reasons. 

11. S DOYLE JA:   I have had the advantage of reading a draft of the joint reasons of Livesey P and Bleby JA.  I adopt their Honours’ description of the background to this application for leave to appeal, and so can be brief in my reasons.

12. I agree with their Honours’ reasons for rejecting Grounds 1 and 3.  In other words, I agree that the majority of the Full Bench addressed the correct question (namely, whether it had been proved beyond reasonable doubt that installation of an engineering measure incorporating a pressure sensor was a reasonably practicable measure for DAT to have adopted), and that the majority’s conclusion (that this had been proved) was available on the evidence.

13. However, I have reached a different view in relation to Ground 2.  In my view, the majority’s reasons for the conclusion they reached were adequate.  I am also satisfied that there was no denial of procedural fairness (Ground 4). 

14. It follows that, whilst I would grant leave to appeal, I would dismiss the appeal.  My reasons follow.

    Ground 2:  adequacy of reasons

15. As explained in the joint reasons, Particulars 2.1 and 2.4 – 2.6 of Ground 2 involve a contention to the effect that the majority of the Full Bench failed to adequately explain how they reached their conclusion in the face of the evidence of AHRNS’ unsuccessful  attempts to devise an engineering solution sufficient to persuade Safework SA to lift the prohibition notice it had issued AHRNS after the accident occurred.  Focussing upon the need for the prosecution to prove that a pressure sensor was a reasonably practicable measure for DAT to have adopted, the applicant argues that, in circumstances where DAT was likely to have sought advice from ARHNS, this evidence of the post-accident history was significant.  It further contends that the majority did not adequately address this evidence or otherwise explain how it reached a conclusion that the charge was proved in the face of this evidence.

16. I accept that it was appropriate to frame the question by reference to, and focus the inquiry upon, whether the adoption of a pressure sensor was a reasonably practicable measure for DAT to have adopted.  I further accept that this required consideration of DAT’s circumstances, including its knowledge and expertise.  In a case such as the present, this included having regard to the need for DAT to seek expert assistance in finding an appropriate engineering solution to the relatively obvious crush risk associated with the operation of its tow truck.  This in turn required having regard to whether, if it had sought advice, DAT would have received advice which included the installation of a pressure sensor in the crush zone.  However, in considering this hypothetical scenario, I do not think it was necessary or appropriate to confine, or even focus, attention upon the identity of the likely source of that advice and the advice that that particular person or entity would have given.  Rather, at that point in the inquiry, I consider that the issue was the more objective issue of what advice an appropriately qualified expert would have given, and whether it ought to have been followed.  Whilst the evidence of AHRNS’ unsuccessful attempts to devise an engineering solution was relevant to this inquiry, it was not necessarily determinative.

17. On my reading of the majority’s reasons, that is how their Honours approached the task.  And having done so, they concluded, based upon Mr Kroon’s evidence, that this advice would have included recommendation of the installation of a pressure sensor, and should have been followed.  In the majority’s view, this was sufficient to prove the charge, despite the evidence as to AHRNS’ unsuccessful attempts to devise an engineering solution.  In other words, rather than failing to deal with the evidence of AHRNS’ unsuccessful attempts, they simply regarded that evidence as having little weight and, in any event, overcome by the evidence of Mr Kroon.  Their acceptance of the evidence of Mr Kroon was, in effect, their reason for finding the charge made out, despite the evidence of AHRNS’ unsuccessful attempts to devise an engineering solution.  Bearing in mind that the complaint under this ground of appeal is one of adequacy of reasons, I consider that the complaint fails.

18. To elaborate, I commence with the reasons of Calligeros DPJ.  His Honour addressed at some length the evidence of AHRNS’ attempts to devise an engineering measure, and the responses of Mr Kroon and SafeWork SA.[91]  After explaining the circumstances in which these attempts occurred, his Honour explained why he did not attach much significance to this evidence:[92]

    SafeWork SA’s approach and the responses made to DAT do not determine or bind this Court in relation to whether a pressure sensitive device was a reasonably practicable engineering measure to use in this case.  In May 2018 Mr Kroon was not asked to identify a suitable engineering measure to minimise the crushing risk but to comment on a proposal from Ahrns to have the Prohibition Notice removed.  It was not for SafeWork SA or Mr Kroon at that time or in that context to suggest or devise a measure on behalf of DAT.  Any measure proposed not only had to minimise the crushing risk, it had to be suitable to DAT from an operational viewpoint.  For that reason, the failed attempts to lift the Prohibition Notice, and the exchanges between DAT, Ahrns and SafeWork SA in that regard, are not probative of whether a pressure sensitive device is a suitable engineering measure to use.  Other factors were in play between the three parties.  There may have been multiple reasons why Ahrns did not suggest some measures, and DAT and SafeWork SA did not accept other measures.

    [91]   Dial A Tow Australia Pty Ltd v Campbell [2023] SAET 49 at [179]-[185].

    [92] [2023] SAET 49 at [185].

19. His Honour then proceeded to address certain aspects of Mr Kroon’s evidence.  He explained that the absence of any industry standard for dealing with the crushing risk that existed was not a barrier to the prosecution case, given the novelty of the tow truck design and the seriousness of the consequences of the risk.  The risk was sufficiently obvious and serious that DAT should not have used the tow truck before identifying, considering and minimising the crushing risk.[93]

    [93]   [2023] SAET 49 at [189]-[192].

20. Calligeros DPJ then made it plain that he relied upon the evidence of Mr Kroon in determining the answer to the relevant hypothetical (despite the evidence of AHRNS’ unsuccessful attempts, and some of the matters identified by DAT’s expert, Mr Hickey):[94]

    While DAT adduced evidence about the engineering measure relied on by the prosecution to minimise the crushing risk, that evidence was not to my mind persuasive and did not displace the expert evidence relied upon by the prosecution.

    In my view the evidence of Mr Kroon established that a pressure sensitive device was a reasonably practicable measure to minimise the crushing risk beyond a reasonable doubt.  It is significant that Mr Kroon was not asked or challenged in cross-examination about any of the matters that are complained of on appeal.  The failure to raise those matters with Mr Kroon combined with my strong preference for his evidence leads to a conclusion that the Deputy President did not err.

    [94]   [2023] SAET 49 at [195]-[196].

21. After dealing with some more matters of detail raised on appeal, Calligeros DPJ restated his preference for the evidence of Mr Kroon despite the evidence of AHRNS’ unsuccessful attempts:[95]

    For the reasons given above, while it may have taken Ahrns nine months to devise a solution for the crushing risk that SafeWork SA found acceptable, that evidence does not create a reasonable doubt that the pressure sensitive device suggested by Mr Kroon was a reasonably practicable engineering solution.  The interactions between DAT, Ahrns and SafeWork SA in relation to the Prohibition Notice do not determine whether the prosecution has made its case and there is limited evidence about these interactions.

    [95] [2023] SAET 49 at [204].

22. His Honour concluded by explaining that he did not consider that the issues of the cost of retrofitting, or testing, stood in the way of this conclusion.[96]

    [96]   [2023] SAET 49 at [205]-[206].

23. Crawley DPJ expressed substantial agreement with Calligeros DPJ’s reasons, and agreed that the appeal should be dismissed for those reasons.[97]  His Honour went on to set out some additional reasons of his own for finding not only that the crushing risk was obvious and serious, but also that expert engineering evidence of Mr Kroon (supported in material respects by the evidence of Mr Hickey) established that it would have been reasonably practicable for DAT to eliminate or minimise that risk through the installation of a pressure sensor.

    [97] [2023] SAET 49 at [208].

24. So far as AHRNS was concerned, Crawley DPJ considered that its risk assessment made it clear that DAT could not simply have relied upon its expertise to address the risk.  In his Honour’s view, the evidence of Mr Kroon established that ‘[h]ad DAT sought the view of an engineer, as it ought reasonably to have done, the evidence establishes an engineering solution would have been suggested and, as the Deputy President found, ought to have been implemented.  The Court heard from two engineers, both of whom discussed the idea of a pressure sensor’.[98]

    [98] [2023] SAET 49 at [236].

25. His Honour concluded:[99]

    The evidence of Mr Kroon which the Deputy President accepted (as he was entitled to do and as would I if required to do so) was that pressure sensors were readily available and would have eliminated the particular risk.  The evidence of Mr Hickey in his report was that such a sensor ‘may have reduced the risk’.  In his oral evidence he agreed that such a device would have diminished the risk.  It is hard to see how it would not have eliminated that particular risk if it was operating correctly. …

    [99] [2023] SAET 49 at [238].

26. Based on the above, it is apparent that the majority did not fail to address the evidence of AHRNS’ unsuccessful attempts to devise an engineering solution.  Rather, their Honours considered that it was overcome by the evidence of Mr Kroon.  It is true that Calligeros DPJ described the evidence of AHRNS’ unsuccessful attempts as ‘not probative’ of the relevant issue in the first of the passages extracted above from his reasons, given the circumstances of those attempts.  However, it is apparent from the subsequent passages extracted above that his Honour meant not that this evidence was entirely irrelevant, but rather that it was not persuasive, and was not determinative of the ultimate issue, given the evidence of Mr Kroon.  Whilst Crawley DPJ did not expressly address this evidence, he agreed with the reasons of Calligeros DPJ.  Clearly, both Calligeros and Crawley DPJJ considered that Mr Kroon’s evidence (supported to some extent by Mr Hickey’s evidence) was sufficient to make out the prosecution case on this issue. 

27. In the circumstances, the operative reasoning of the majority of the Full Bench was adequately set out.  Whilst it might be argued that the majority should have attached more weight to the difficulties experienced by AHRNS, that is not the issue on this ground of appeal.  It is sufficient that the majority made it clear that the reason this evidence did not give rise to a reasonable doubt was the force of Mr Kroon’s evidence as to the advice that ought to have been given by an appropriate expert.

28. As to the balance of the applicant’s complaints in relation to the adequacy of the majority’s reasons, I do not consider it is necessary to address these matters in any detail, particularly in circumstances where these are dissenting reasons and the matter will need to be reheard.

29. However, speaking generally, I regard the balance of the complaints about the majority’s reasoning as raising alleged deficiencies which go beyond what is required of adequate reasons.  As Kiefel CJ, Keane and Edelman JJ explained in DL v The Queen,[100] whilst judicial reasons must explain significant or necessary steps to the final conclusion, it is not necessary that they address peripheral issues or provide a minute explanation of every step in the reasoning process that leads to that conclusion.

    [100] DL v The Queen (2018) 266 CLR 1 at [32]-[33].

30. Whilst their Honours could have said more, and the merit or force of some aspects of their reasoning might be open to reasonable criticism, that is not the issue.  The challenges made to their Honours’ reasons for accepting the evidence of Mr Kroon relate to matters of detail that do not establish any relevant inadequacy.  I include within this the complaints made about Calligeros DPJ’s reasons for preferring the evidence of Mr Kroon over that of Mr Hickey, to the extent of any inconsistency between them.  I address this matter further below.

    Ground 4:  procedural fairness

31. Given that I am in dissent, and the matter will need to be reheard, I also do not consider it necessary to set out my reasons on this ground in any detail. 

32. Most of the complaints made under this ground relate to Calligeros DPJ’s reasons for preferring the evidence of Mr Kroon over that of Mr Hickey, to the extent of any inconsistency.  As the applicant points out, at first instance, the Deputy President did not consider there to be any relevant difference between the views of the experts that needed to be resolved.  The parties conducted the appeal on this same footing.  From this starting point, the applicant contends that insofar as Calligeros DPJ preferred the evidence of Mr Kroon over that of Mr Hickey, he did so without providing the applicant with any notice that this might occur and in circumstances which involved a want of procedural fairness.

33. In my view, the applicant’s complaint is premised upon an overstatement of the significance of this aspect of Calligeros DPJ’s reasons.  Much like the adequacy of reasons, the demands of procedural fairness requires a contextual approach, and often involves matters of fact and degree.  Whilst a judge may well be required to give a party notice of an intention to make an adverse finding which that party might not have apprehended would be made, having regard to the known material and the way in which a matter has been conducted, this need for notice does not extend to every situation in which a judge intends to reason in a way not reflected in the arguments advanced.[101]

    [101] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]-[35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

34. It may be accepted that the Deputy President, and the parties on appeal before the Full Bench, were prepared to proceed on the basis that the views of Mr Kroon and Mr Hickey were broadly consistent.  However, the reality was that there were some differences between the views expressed by these experts.  Put broadly, Mr Hickey raised some matters of detail and emphasis that might have been seen as qualifications to, or potential inconsistencies with, the more definitive views expressed by Mr Kroon.  In circumstances where the Full Bench was required to undertake an independent assessment of the evidence, and the respondent was contending that Mr Kroon’s evidence could be relied upon as supporting the outcome at first instance, it was entirely predictable that their Honours might address some of these matters.

1. Had there been some fundamental difference in opinion between the experts, then the position might have been different.  The demands of procedural fairness might have intervened had the Full Bench sought to resolve such a difference without first hearing further from the parties.  But I would not characterise what occurred here in that way.  Consistently with the reasoning of the Deputy President and the approach of the parties, and indeed the additional reasons of Crawley DPJ, Mr Hickey’s evidence was broadly consistent with, and supportive of, the views expressed by Mr Kroon.  The differences were as to matters of detail and emphasis, and more in the nature of potential qualifications than any fundamental difference.  Whilst it was perhaps not necessary for him to do so, I do not consider that there was any denial of procedural fairness in Calligeros DPJ addressing these matters, and preferring Mr Kroon to the extent of any inconsistency.  Again, whilst there may be some merit or force in some of the challenges made to these aspects of Calligeros DPJ’s reasons, that is not the issue.

   Conclusion

2. For the reasons given, I would grant leave to appeal on the questions of law raised in Grounds 1 to 4, but dismiss the appeal.