Company fined $3 million for failing to properly assess competence of driver

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, Hicks’ competency had only been assessed in automatic trucks, not in manual trucks, such as the one being driven at the time of the accident. Further, the Court held that Mr Hicks’ competency had not been assessed in the types of conditions that he would be driving, namely, at speed on busy highways and on steep descents. In particular, Cleanaway had not assessed Mr Hicks’ competence to select and make appropriate gear changes, particularly on descents. Until such time as Cleanaway had satisfactorily assessed the driver’s competence, he should not have been permitted to drive unsupervised. 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 to perform the work required. In the case of heavy vehicle drivers, this will include ensuring that they are competent to drive the type(s) of vehicles that they will be called on to operate and that they are competent to drive such vehicles in the conditions and on the types of routes that they will operate
• if any particular vehicle, driving conditions or route raises particular risks of death or serious injury, then additional risk-management measures may be required
• systems of this nature must be implemented consistently and across the board.

Conclusion

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.

If you have any questions about this article, please contact partner Nathan Cecil or a member of our Transport, Shipping & Logistics team in the Key Contacts section below.

Authors: Nathan Cecil & Melanie Long

• This article was originally published in CoR Adviser. The article is © 2022 Portner Press Publishing Pty Ltd and has been reproduced with permission of Portner Press.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nathan Cecil

Melanie Long

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