Competency and supervision, guilty verdict returned in landmark WHS prosecution over road accident

A national employer was found guilty of eight WHS charges, relating to its failure to adequately check the competencies of a new hire, who later caused a road accident resulting in two deaths.

South Australian Magistrate Simon Smart found Cleanaway Operations Pty Ltd (formerly Transpacific Industries Pty Ltd) breached its duty of care when it failed properly assess driver Darren Hicks’s competency to drive the manual road tanker or control it on the downhill parts of the route he had to travel. Hicks had only recently obtained an unrestricted heavy vehicle licence and been employed by Cleanaway for just five days, Magistrate Smart found.

The magistrate said the company should have been alert to the associated risks, but had failed to take any “obvious, rudimentary and necessary“ safety measures before assigning him his task on that day.

In August 2014, Hicks lost control of the tanker truck he was driving and it reached speeds of more than 150km/h before colliding with three cars at the intersection of the South Eastern Freeway and Cross Road in Adelaide. Two people died from their injuries and two others were seriously injured, including Hicks.

As reported by OHS Alert in August 2016, national WHS regulator Comcare charged Cleanaway with eight breaches of the Commonwealth WHS Act. Each charge, made under section 32, carried a maximum penalty of $1.5 million. Comcare alleged Cleanaway breached its duty of care in failing to provide Hicks with adequate training and supervision, including on “safely negotiating the freeway’s steep descent from the Adelaide Hills, using arrester beds and driving a heavy vehicle with a manual gearbox“.

The employer pleaded not guilty but Magistrate Smart found this week that each charge was made out.

Between obtaining his heavy vehicle licence and the day of the incident Hicks had not driven a heavy vehicle with a manual transmission, the Magistrate found.

Cleanaway had only assessed the driver in driving an automatic truck but assigned him a manual truck on the day of the accident. Hicks did not recall having been asked by anyone at Cleanaway if he had driven this type of vehicle before or being provided training on how to drive it, the court heard.

Magistrate Smart said it was beyond reasonable doubt that Cleanaway recognised the importance of undertaking competency-based driver assessments to reduce safety risk. It employed trainers and provided extra vehicles for this purpose.

But it failed to maintain a system of work that prevented Hicks from driving without proper supervision until his competency in relation to all the vehicles he was required to drive was determined, he said.

“An assessment by [Cleanaway] itself of the competence of the driver Hicks to perform the identified task would have given [Cleanaway] direct knowledge of his level of competence to undertake those tasks,” Magistrate Smart said.

A proper check of his competencies would have provided Cleanaway with the knowledge to only assign him tasks of which he was capable, thus minimising the risk of a crash, he said.

Comcare v Cleanaway Operations Pty Ltd (Acn 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 (19 April 2021)