A driver’s licence does not prove competency to operate a truck under workplace health and safety laws according to a landmark court ruling in the Supreme Court of South Australia
In a decision that has “potentially far-reaching” implications for the transport industry, a court recently found employers of truck drivers must ensure they have the proper and consistently applied systems in place to measure their competence – in addition to a relevant driver’s licence.
In the largely unreported case, the Supreme Court of South Australia upheld an earlier ruling by the SA Magistrates’ Court 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.
In an article published in CoR Adviser, Holding Redlich partner Nathan Cecil says the key implication of the decision is that having a heavy vehicle driver’s licence does “not necessarily demonstrate the required standard of competence” under workplace health and safety laws.
Based on the decision, “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,” he says.
Background
Cecil explains that on August 18, 2014, the driver, Darren 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 him and one other person.
Hicks failed to engage a lower gear on his approach to the intersection, leaving the vacuum truck in neutral.
Charges initially laid against Hicks were dropped in 2018. But his employer was last year found guilty in the Adelaide Magistrates Court of eight counts of failing to comply with its health and safety duty on the basis it had failed to adequately train and supervise the driver and maintain a safe system of work. Hicks had obtained his heavy vehicle licence two months before the accident and had worked for the company for just days.
The SA Magistrates’ Court concluded that Cleanaway failed to ensure Hicks was competent to select the proper gearing for the vacuum truck on his descent along the Freeway and fined Cleanaway $12 million.
Eight years after the fatal crash, Cleanaway appealed its conviction in the Supreme Court on multiple grounds, arguing Magistrate Simon Smart had erred in finding that there was sufficient evidence to prove it was reasonably practicable to assess the competence of Hicks to drive down the freeway.
While reducing the fine payable by Cleanaway to $3 million, Chief Justice Chris Kourakis dismissed the company’s appeal, saying Cleanaway had breached its duties.
It agreed with the lower court’s decision that it was “reasonably practicable” to assess the competence of 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.
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 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 his 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 Hicks was not sufficient for it to have met its duty under the Act, the court concluded.
Crucially, the judge noted that a driver having a heavy vehicle licence did not demonstrate the required standard of competence.
“So much was recognised by Cleanaway because it employed a person to assess the competence of the drivers it employed,” he said.
However, the level of competency assessment undertaken by Cleanaway of Hicks was not sufficient for it to have met its duty under the Act, the judge found.
In his written judgement, Kourakis said while Cleanaway Operations had a system in place to assess drivers, it was not regularly used.
“It was not effectively implemented in a timely manner before Mr Hicks set off in a heavy vehicle with a manual gear box on a descent which had particularly high risks and which required a well-trained or experienced driver,” he said.
“The brake failure was both a circumstance against which competence in the use of gears was a safeguard, and a problem which was exacerbated by Mr Hicks’s failure to use the gears effectively.”
Implications
NTI Transport Research Manager Adam Gibson says the decision goes some way in addressing the vexed question of whether a heavy vehicle licence is a “complete qualification” that can be relied upon to prove competence – or whether further training is required.
He notes state and federal licensing regulations are largely silent on the subject.
“The court ruling sets out a fairly sensible position that to ensure a safe system of work to complete the task, people must have the relevant skills,” he says.
“It is saying that having a licence alone is not adequate to prove people have the competency to operate a truck.”
In response to the decision, Cecil says 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,” he says.
“If any particular vehicle, driving conditions or route raises particular risks of death or serious injury, then additional risk-management measures may be required.”
Importantly, systems of this nature must be implemented consistently and across the board.
“In the end, it points back to the NHVR message around safe management systems; that is, taking a methodical approach to managing risks around the operation of a heavy vehicle by identifying what are the key risks, what are the processes to manage them, and whether the processes are documented and are functioning appropriately,” Gibson says.
Cecil notes that while the case is particularly relevant to the induction of new employees, it equally applies to assessing the ongoing competence of drivers who may have been working for the business for longer periods of time.
Gibson agrees, noting that employers often only train at the point of entry to the business.
“However, if there’s a change in equipment or task there often isn’t anything in the way of revisiting competencies to ensure the person has the appropriate skills for that new truck or new task,” he says.
“For example, if an operator has a mixed business comprising concrete agitators and sand and gravel transport, there’s a major pitfall in handing the keys to a driver to do a different task if the driver hasn’t had training on that specific task.”
The case also raises the question of how often drivers should receive refresher training, Gibson believes.
“For example, if a driver has been trained on the task but hasn’t actually performed the task for a few years, is it still valid?
“This should be dependent on each specific task – for example, for an agitator with a high rollover risk, drivers should be retrained more regularly, while for someone driving a curtain-sider up and down the Hume it should be less frequent,” he suggests.
