The Supreme Court of South Australia has recently upheld a decision of a lower court in deciding that waste management company, Cleanaway, failed to take reasonably practicable measures to materially reduce the risk of an accident on the South Eastern Freeway in Adelaide back in 2014 which killed two people and seriously injured two others.
The implications of this decision are potentially far-reaching for businesses who, according to this judgment, must ensure they have the proper and consistently applied systems in place to measure the competence of their drivers.
Background and the court's decision
On 18 August 2014, Mr Hicks lost control of a Cleanaway vacuum truck as he was driving on the down track of the Freeway resulting in a collision at an intersection which killed two people and seriously injured Mr Hicks and one other person. Mr Hicks failed to engage a lower gear on his approach to the intersection, leaving the vacuum truck in neutral.
This case concerned an appeal from the South Australian Magistrates' Court which concluded that Cleanaway failed to ensure that Mr Hicks was competent to select the proper gearing for the vacuum truck on his descent along the Freeway and fined Cleanaway $12 million.
The Supreme Court of South Australia, while reducing the fine payable by Cleanaway to $3 million, agreed with the lower court's decision that it was "reasonably practicable" to assess the competence of Mr Hicks to drive down the Freeway and that in failing to do so it breached its duties under the Work Health and Safety Act 2011 (Cth) (Act) to ensure, so far as reasonably practicable, the health and safety of its workers, and of other people, who may be put at risk from the work carried out as part of its business or undertaking.
In this case, Mr Hick's competency had only been assessed in automatic trucks and not on all routes that he may be required to drive during his work. This was in spite of the fact that the ability to make appropriate gear changes, particularly on descents, was an important safeguard against the risk of collision. Therefore, the level of competency assessment undertaken by Cleanaway of Mr Hicks was not sufficient for it to have met its duty under the Act. Additionally, the judge concluded that a driver having a heavy vehicle licence did also not demonstrate the required standard of competence:
"...holding a heavy vehicle licence is a regulatory requirement which ensures a minimum, but not always sufficient, standard of competence. So much was recognised by Cleanaway because it employed a person to assess the competence of the drivers it employed. There was no practical reason for not assessing Mr Hick's competence in gear selection for a descent of the Freeway before he was directed to drive the vacuum truck down the Freeway."
Implications of the decision
The implications of this decision are potentially far-reaching and include:
- having the appropriate licence does not necessarily demonstrate the required standard of competence
- employers must take the extra step of actually ensuring their employees are competent. This may be done by an experienced operator "shadowing" a new employee in all types of vehicles and on all routes that the employee may be required to drive during the course of their work
- systems of this nature must be implemented consistently and across the board.
This is an important decision for employers to be aware of and serves as a reminder to businesses to review their safety management systems to ensure they are doing all they can to meet their duty to ensure, so far as reasonably practicable, the health and safety of its workers, and of other people, who may be put at risk from the work carried out as part of its business or undertaking.
This case is particularly relevant to the induction of new employees but equally applies to assessing the ongoing competence of drivers who may have been working for the business for longer periods of time.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.