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Failure to check tanker driver’s competence: employer guilty

A court has found the employer guilty of eight offenses under WHS laws.
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Failure to check tanker driver’s competence: employer guilty

Failure to check tanker driver’s competence: employer guilty

28 April 2021

By Gaby Grammeno

A court has found an employer guilty of eight offences under work health and safety laws, after an inexperienced driver lost control of the tanker he was driving and hit three cars at an intersection, killing two people and injuring two others. The employer had failed to take reasonable steps to properly train and ensure the competence of the novice driver.

Steep descent at 150km/h

The driver had only recently obtained an unrestricted heavy vehicle licence and he’d been with the company less than a week in August 2014 when the incident occurred. Though the employer had assessed his competence in driving an automatic truck, on that day it assigned him to a sewage tanker with manual transmission.

He was travelling with the tank ‘near capacity’ down a steep descent on Adelaide's South Eastern Freeway when he started to gain speed. He put on the exhaust brakes but was then forced to use the footbrakes. He wanted to slow the truck down but it was going too fast to change gears.

The truck went out of control and reached a speed of 151.9km/h before slamming into vehicles at the intersection with a cross road. Four people were seriously injured, including the driver, and two of them later died from their injuries.

The federal WHS regulator, Comcare, began legal proceedings against the employer, a national waste management company, in August 2016. It was charged with eight breaches of WHS laws, each of which carries a maximum penalty of $1.5 million.

The matter was heard in the Magistrates Court of South Australia.

Unfamiliar with the vehicle

The driver told the court it was the first time he’d driven that truck and it was different to the ones he’d driven before and during his two-day heavy vehicle training course.

‘For the most part it was completely different – it was older, it was a manual rather than an automatic, two axles rather than three,’ he told the court. He said the gearbox was ‘clunky’ and changing gears was not smooth.

He was asked in court if he’d passed an ‘arrester bed’ – a short, gravel-filled, uphill exit ramp from a freeway or motorway, designed to reduce the speed of an out-of-control vehicle – at any point while going down the freeway, and he replied that he’d passed two beds before he applied the footbrake. He also gave evidence that he did not think any company staff had ever discussed with him how to drive down the freeway or what an arrested bed was.

Lawyers acting for his employer asked him if he was ‘competency tested’ for a number of situations, including double clutching, before the crash. He said he was.

Vehicle maintenance also appeared to be an issue. The court heard an accident investigator’s evidence that the truck's brake linings were ‘very worn’ and that it was very unlikely the rear brakes had been adequately serviced. He said the brakes likely overheated before the crash, resulting in the loss of braking, and that the rear brake drum linings should have been replaced before the collision.

Guilty of failing to provide adequate training

The Magistrate found the company guilty of eight counts of failing to comply with their health and safety duty.

‘As the operator of heavy vehicles, the defendant ought reasonably to have known of the risk to heavy vehicles of brake failure on long downhill routes and the importance of gear selection in a manual vehicle to control the speed of the vehicle and also the importance of ensuring the competence of drivers to undertake such descents,’ he wrote.

It was clear the employer had not provided the training, instruction or supervision necessary to ensure the driver was competent to drive all routes he needed to drive in the course of his work.

The company knew or ought to have known that the driver had only recently obtained his heavy vehicle licence and lacked practical experience in the driving ‘of a manual heavy vehicle in particular and the driving of a heavy vehicle on the South Eastern Freeway’.

The bottom line: There is no substitute for adequate training, information, instruction and supervision.

Read the judgment

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

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